My spouse has passed away – what is an elective share?

On Behalf of | May 21, 2021 | Probate And Estate Administration |

When a loved one passes away, you can be left with a lot to deal with. It’s an emotional time and you may find that thinking of probate and estate issues is the last thing you want to do. The laws governing these issues can be exceedingly complex and can include terms and concepts you have never heard before.

Elective share basics

One probate law term that is unfamiliar to most people is “elective share.” This refers to a provision of Pennsylvania law that is meant to protect people from disinheritance after the death of a spouse. When a spouse passes and leaves a will, it determines how all of the spouse’s assets are distributed. Wills should be updated when significant life events occur, such as a marriage or the birth of a child. But unfortunately, this doesn’t always happen. When it doesn’t, a surviving spouse can be left out of the will and accidentally or even intentionally disinherited.

Pennsylvania’s elective share law allows the surviving spouse to choose to inherit 1/3 of the deceased spouse’s assets, regardless of what the will says. The elective share can be complex – there are exceptions to what assets fall within the rule – but it exists to protect the surviving spouse.

There are time limits that must be followed if a surviving spouse chooses to take the elective share. The surviving spouse must file their intention to take the elective share within six months of their spouse’s death, or within six months of the will being probated (whichever is later). If a surviving spouse fails to file their intention with the six months, they give up their right to take the election.

Although a surviving spouse has the right to take an elective share, doing so is not always the best option. Speaking to an experienced attorney, one who can go through your options with you and determine your best course of action, is the best way you protect yourself and honor the memory of your loved one.