ELECTIVE SHARE OF SURVIVING SPOUSE
2201. Definition of conveyance.
2202. Right of election; nonresident decedent.
2203. Right of election; resident decedent.
2204. Disclaimers, releases and charges against elective share.
2205. Transfers for value excluded.
2206. Right of election personal to surviving spouse.
2207. Waiver of right to elect.
2208. Forfeiture of right of election.
2209. Surviving spouse as witness.
2210. Procedure for election; time limit.
2211. Determination of effect of election; enforcement.
Enactment. Chapter 22 was added April 18, 1978, P.L.42, No.23, effective in 60 days.
Cross References. Chapter 22 is referred to in sections 2201, 2209, 3702 of this title.
§ 2201. Definition of conveyance.
As used in this chapter, unless the context clearly indicates otherwise, "conveyance" means an act by which it is intended to create an interest in real or personal property whether the act is intended to have inter vivos or testamentary operation.
§ 2202. Right of election; nonresident decedent.
When a married person not domiciled in this Commonwealth dies, the rights, if any, of his surviving spouse to an elective share in property in this Commonwealth are governed by the laws of the decedent's domicile at death, but the rights of the electing spouse shall be subject to the rights of fiduciaries, custodians and obligors within this Commonwealth and transferees for value of and holders of liens for value on real estate or tangible personal property located in this Commonwealth under section 2211 (relating to determination of effect of election; enforcement).
§ 2203. Right of election; resident decedent.
(a) Property subject to election.--Except as provided in subsection (c), when a married person domiciled in this Commonwealth dies, his surviving spouse has a right to an elective share of one-third of the following property:
(1) Property passing from the decedent by will or intestacy.
(2) Income or use for the remaining life of the spouse of property conveyed by the decedent during the marriage to the extent that the decedent at the time of his death had the use of the property or an interest in or power to withdraw the income thereof.
(3) Property conveyed by the decedent during his lifetime to the extent that the decedent at the time of his death had a power to revoke the conveyance or to consume, invade or dispose of the principal for his own benefit.
(4) Property conveyed by the decedent during the marriage to himself and another or others with right of survivorship to the extent of any interest in the property that the decedent had the power at the time of his death unilaterally to convey absolutely or in fee.
(5) Survivorship rights conveyed to a beneficiary of an annuity contract to the extent it was purchased by the decedent during the marriage and the decedent was receiving annuity payments therefrom at the time of his death.
(6) Property conveyed by the decedent during the marriage and within one year of his death to the extent that the aggregate amount so conveyed to each donee exceeds $3,000, valued at the time of conveyance.
In construing this subsection, a power in the decedent to withdraw income or principal, or a power in any person whose interest is not adverse to the decedent to distribute to or use for the benefit of the decedent any income or principal, shall be deemed to be a power in the decedent to withdraw so much of the income or principal as is subject to such power, even though such income or principal may be distributed only for support or other particular purpose or only in limited periodic amounts.
(b) Property not subject to election.--The provisions of subsection (a) shall not be construed to include any of the following except to the extent that they pass as part of the decedent's estate to his personal representative, heirs, legatees or devisees:
(1) Any conveyance made with the express consent or joinder of the surviving spouse.
(2) The proceeds of insurance, including accidental death benefits, on the life of the decedent.
(3) Interests under any broad-based nondiscriminatory pension, profit sharing, stock bonus, deferred compensation, disability, death benefit or other such plan established by an employer for the benefit of its employees and their beneficiaries.
(4) Property passing by the decedent's exercise or nonexercise of any power of appointment given by someone other than the decedent.
(c) Nonapplicability.--Pursuant to 23 Pa.C.S. § 3323(d.1) (relating to decree of court), this section shall not apply in the event a married person domiciled in this Commonwealth dies during the course of divorce proceedings, no decree of divorce has been entered pursuant to 23 Pa.C.S. § 3323 and grounds have been established as provided in 23 Pa.C.S. § 3323(g).
(July 11, 1980, P.L.565, No.118, eff. 60 days; Nov. 29, 2004, P.L.1357, No.175, eff. 60 days)
2004 Amendment. Act 175 amended subsec. (a) and added subsec. (c). Section 5(4) of Act 175 provided that the amendment or addition of subsecs. (a) and (c) shall apply to the death of one of the parties on or after the effective date of par. (4) irrespective of whether the divorce proceeding was commenced before, on or after the effective date of par. (4).
Cross References. Section 2203 is referred to in sections 2204, 2205 of this title.
§ 2204. Disclaimers, releases and charges against elective share.
(a) Disclaimers.--Except as provided in subsections (b) and (c), an election by a spouse to take his elective share shall be deemed a disclaimer of any beneficial interest of the spouse in the following, to the extent that such interest would otherwise be payable to or enjoyed by the spouse after the decedent's death:
(1) Property subject to the spouse's election not awarded to the spouse as part of his elective share.
(2) Property appointed by the decedent's exercise of a general or special power of appointment, and property passing in default of appointment to the extent that the decedent had power to exclude his spouse from any interest therein.
(3) Property in any trust created by the decedent during his lifetime.
(4) Proceeds of insurance, including accidental death benefits, on the life of the decedent attributable to premiums paid by him, his employer, partner or creditor.
(5) Any annuity contract purchased by the decedent, his employer, partner or creditor.
(6) Any pension, profit sharing, stock bonus, deferred compensation, disability, death benefit or other plan established by an employer for the benefit of its employees and their beneficiaries, exclusive of the Federal social security system and railroad retirement system, by reason of services performed or disabilities incurred by the decedent.
(7) Community property in the proportion that it represents the decedent's earnings or contributions.
(8) All intangible or tangible personal property and all real property owned by the decedent and his spouse by the entireties or jointly with right of survivorship, in the proportion that such property represents contributions by the decedent.
(9) All intangible or tangible personal property and all real property given to his spouse by the decedent during his lifetime which, or the proceeds of which, are still owned by his spouse at the time of the decedent's death.
(b) Conveyances and releases.--Except as provided in subsection (c), if any of the foregoing beneficial interests has already been accepted or cannot be disclaimed for any other reason, the spouse shall be entitled to an elective share only if the spouse conveys or releases such interest to those who would take it if the spouse had disclaimed it, and such conveyance or release shall be valid regardless of any spendthrift or similar provision.
(c) Charges against elective share.--Notwithstanding the provisions of subsections (a) and (b), the spouse may elect to retain any beneficial interest described in subsection (a) which immediately after the decedent's death consists of property owned by the spouse outright or in fee simple absolute, and have the value thereof at the time of the decedent's death charged against the elective share. The value at the time of the decedent's death of any beneficial interest described in subsection (a), regardless of its form, shall also be so charged against the elective share to the extent that it cannot be disclaimed, conveyed or released. If any property retained by the spouse pursuant to this subsection would have reverted to the personal representative of the decedent's estate under section 2211(b)(2) and (3) (relating to determination of effect of election; enforcement) had the property been disclaimed, its value shall be added to the value of the property passing by will or intestacy for the purpose of computing the spouse's elective share under section 2203(a)(1) (relating to right of election; resident decedent).
(d) Definition of "beneficial interest".--The term "beneficial interest" as used in this section shall include any power of appointment or power of consumption and any benefit arising from a direction by the decedent regarding the source of payment of inheritance or estate taxes.
(e) Conditional decree.--Any award to the electing spouse shall be conditioned upon:
(1) the spouse's delivery, in recordable form in the case of real estate, of such disclaimers, releases or conveyances as may be appropriate to insure protection to the person or persons entitled to disclaimed, released or conveyed property; and
(2) the filing with the court of proof of compliance with the condition.
(July 11, 1980, P.L.565, No.118, eff. 60 days; Dec. 16, 1992, P.L.1163, No.152, eff. imd.)
1992 Amendment. Act 152 amended subsec. (a)(8) and (9). Section 27(d) of Act 152 provided that the amendment of subsec. (a)(8) and (9) shall apply to the estates of decedents dying on or after the effective date of Act 152.
1980 Amendment. Act 118 amended subsec. (c).
Cross References. Section 2204 is referred to in section 2205 of this title.
§ 2205. Transfers for value excluded.
Conveyances and contracts made by the decedent are excluded from the provisions of section 2203 (relating to right of election; resident decedent) and section 2204 (relating to disclaimers, releases and charges against elective share), to the extent that the decedent received adequate consideration therefor in money or money's worth.
§ 2206. Right of election personal to surviving spouse.
The right of election of the surviving spouse may be exercised in whole or in part only during his lifetime by him or by his agent in accordance with section 5603(d) (relating to implementation of power of attorney). In the case of a minor spouse, the right of election may be exercised in whole or in part only by the spouse's guardian; in the case of an incapacitated spouse, the right of election may be exercised in whole or in part only by the spouse's guardian or by his agent in accordance with section 5603(d) if the power of attorney qualifies as a durable power of attorney under section 5604 (relating to durable powers of attorney); provided, that, in each case, the election shall be exercised only upon order of the court having jurisdiction of the minor's or the incapacitated person's estate, after finding that exercise of the right is advisable.
(Feb. 18, 1982, P.L.45, No.26, eff. imd.; Apr. 16, 1992, P.L.108, No.24, eff. 60 days; Oct. 12, 1999, P.L.422, No.39, eff. 60 days)
1999 Amendment. See section 13(8) of Act 39 in the appendix to this title for special provisions relating to applicability.
1992 Amendment. See section 21 of Act 24 in the appendix to this title for special provisions relating to applicability.
Cross References. Section 2206 is referred to in section 5603 of this title.
§ 2207. Waiver of right to elect.
The right of election of a surviving spouse may be waived, wholly or partially, before or after marriage or before or after the death of the decedent.
§ 2208. Forfeiture of right of election.
A surviving spouse who under the provisions of section 2106 (relating to forfeiture) would not be entitled to a share of the decedent's estate had he died intestate shall have no right of election.
§ 2209. Surviving spouse as witness.
A person who is or claims to be the surviving spouse shall be a competent witness as to all matters pertinent to his rights under this chapter other than the creation of his status as the surviving spouse.
(Feb. 18, 1982, P.L.45, No.26, eff. imd.)
1982 Amendment. Section 13 of Act 26 provided that the amendment shall be effective as of June 17, 1978, and shall apply to the estates of all decedents dying on or after that date.
§ 2210. Procedure for election; time limit.
(a) How election made.--A surviving spouse's election to take or not to take his elective share shall be by a writing signed by him and filed with the clerk of the orphans' court division of the county where the decedent died domiciled. Notice of the election shall be given to the decedent's personal representative, if any.
(b) Time limit.--The election must be filed with the clerk before the expiration of six months after the decedent's death or before the expiration of six months after the date of probate, whichever is later. The court may extend the time for election for such period and upon such terms and conditions as the court shall deem proper under the circumstances on application of the surviving spouse filed with the clerk within the foregoing time limit. Failure to file an election in the manner and within the time limit set forth in this section shall be deemed a waiver of the right of election.
(c) Costs.--The costs of filing and recording the election shall be reimbursed out of the estate as a part of the administration expenses.
(Feb. 18, 1982, P.L.45, No.26, eff. imd.)
§ 2211. Determination of effect of election; enforcement.
(a) Power of court of domicile.--After notice and hearing, the orphans' court division of the county of the decedent's domicile shall determine all matters concerning the spouse's election, including the interests and liabilities of the spouse and others in or with respect to all property, regardless of its situs, which is subject to the election or which must be disclaimed, released or conveyed by the spouse or charged against the elective share.
(b) Effect of election.--In exercising its powers under subsection (a), the court shall honor any provision in the decedent's will or other conveyance concerning interests of those other than his spouse in the event of an election. Subject to any such provision, the court shall be guided by the following rules but shall have the power to supplement or to depart from them if, in its opinion, a different determination of the rights of the spouse and others would more nearly carry out what would have been the particular decedent's intention had he known of the election:
(1) In general.--Property which otherwise would pass by intestacy shall first be applied toward satisfaction of the spouse's elective share. The balance of the elective share shall then be charged separately against each conveyance subject to the election, the passing of property by will to be treated as a conveyance for this purpose, but the spouse shall have no right to share in any particular item of property within each conveyance. After the value of the electing spouse's fractional interest in each conveyance at the time of distribution is determined, items of property within the conveyance may be allocated disproportionately at distribution values between the elective and nonelective shares in order to give maximum effect to the decedent's intention with respect to the disposition of particular items or kinds of property. Property in the nonelective share shall be distributed among the beneficiaries of each conveyance in accordance with the rules of abatement or by analogy thereto.
(2) Disclaimed interests contingent on survival.--If a surviving spouse has disclaimed an interest which would have terminated at the spouse's death or was contingent upon the spouse surviving the decedent, the interests of others shall be as they would have been if the spouse had predeceased the decedent.
(3) Other disclaimed interests.--Except as above provided, disclaimed interests shall pass to other beneficiaries of the conveyance according to section 2514 (relating to rules of interpretation), which may be applied by analogy to inter vivos conveyances or, where those provisions cannot be applied, by way of reversion to the personal representative of the decedent's estate.
(4) Windfalls.--If the election and disclaimers, releases and conveyances by a surviving spouse in connection therewith result in an increase in the value of the interest of a beneficiary, the court may require contributions from such a beneficiary, directly or by sequestering the disclaimed, released or conveyed interests, in relief of other beneficiaries, so that no beneficiary will receive more value than he would have received in the absence of the election.
(c) Enforcement.--The rights of the electing spouse may be enforced, as the court considers appropriate, by orders, decrees or judgments requiring the performance of specific acts by, or imposing personal liability on:
(1) any fiduciary, custodian or obligor to the extent that he is in possession of property subject to the spouse's election or its proceeds; or
(2) the original beneficial recipient of such property or the donee of that recipient, including successive donees, to the extent that each donee is in possession of such property or its proceeds.
Any such order, decree or judgment of the orphans' court division of the county of the decedent's domicile under this section may be further enforced as necessary by suits in other courts. The liabilities as determined by the court may be enforced against fewer than all persons against whom relief could be sought but no person shall be subject to contribution in any greater amount than he would have been if full relief had been secured against all persons subject to contribution.
(d) Restraining orders.--The court on petition of a surviving spouse may restrain any person from making a payment or transfer of property which may be subject to the spouse's election, either before or after an election is made.
(e) Protection of fiduciaries, custodians and obligors.--Unless restrained by court decree, no fiduciary, custodian or obligor, other than the personal representative of the decedent's estate, shall be liable for making such payments or distributions of property subject to the spouse's election as would have been required by the terms of the conveyance or contract in the absence of an election.
(f) Transferees and lienholders for value.--No transferee of or holder of a lien against property subject to a spouse's election shall be liable to a surviving spouse if the transferee or lienholder has given a bona fide consideration, unless a certified copy of an order or decree of court providing to the contrary with respect to real property has been recorded in the office for the recording of deeds of the county where the real estate lies prior to the recording of the transfer or the entry of the lien of record. The recording of any such order or decree shall be indexed in the grantor's index under the name of the decedent.
Cross References. Section 2211 is referred to in sections 2202, 2204, 5603 of this title.