Spousal Election in an estate

By: Michael Raisman, Esquire

While rare, a spouse is sometimes left out of a will. For example, a spouse may create awill prior to getting married, and may either forget or put off changing their will. The spouse hasa right to be concerned, as all accounts may have been in the now-deceased spouse's name, andthey may now have no income, no savings, and no home. Fortunately for the spouse, there areoptions.

Under Pennsylvania law, they may recover 1/3 of the assets even if there are noprovisions for them in the will. For this to occur, the spouse has 6 months from the date of deathand/or probate to request for the elective share by filing the election with the register ofwills/orphan's court. There are certain assets that are covered, and certain assets that are notcovered, so it is best to speak with a knowledgeable attorney to determine what you may beentitled to.

However, there are several exceptions. If the spouse and decedent were in the middle of adivorce proceeding, or if the spouse willfully neglected or deserted the spouse, there may be norecourse, depending on certain factors. Additionally, when a spouse assisted in the killing of thedecedent, the spousal election does not apply.

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