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 a will prior to getting married, and may either forget or put off changing their will. The spouse has a right to be concerned, as all accounts may have been in the now-deceased spouse's name, and they may now have no income, no savings, and no home. Fortunately for the spouse, there are options.

Under Pennsylvania law, they may recover 1/3 of the assets even if there are no provisions for them in the will. For this to occur, the spouse has 6 months from the date of death and/or probate to request for the elective share by filing the election with the register of wills/orphan's court. There are certain assets that are covered, and certain assets that are not covered, so it is best to speak with a knowledgeable attorney to determine what you may been titled to.

However, there are several exceptions. If the spouse and decedent were in the middle of a divorce proceeding, or if the spouse will fully neglected or deserted the spouse, there may be no recourse, depending on certain factors. Additionally, when a spouse assisted in the killing of the decedent, the spousal election does not apply.

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