PRINTER'S NO. 1365
No. 1142 Session of 1975
INTRODUCED BY FRAME, REIBMAN, AMMERMAN, HAGER, HILL AND O'PAKE,
OCTOBER 16, 1975
REFERRED TO JUDICIARY, OCTOBER 16, 1975
AN ACT
1 Amending Title 20 (Decedents, Estates and Fiduciaries) of the
2 Pennsylvania Consolidated Statutes, further providing for the
3 rights of certain persons in estates of certain decedents and
4 the rules of interpretation of wills and conveyances.
5 The General Assembly of the Commonwealth of Pennsylvania
6 hereby enacts as follows:
7 Section 1. Sections 2101 and 2102 of Title 20, act of
8 November 25, 1970 (P.L.707, No.230), known as the Pennsylvania
9 Consolidated Statutes, added June 30, 1972 (P.L.508, No.164),
10 are repealed.
11 Section 2. Title 20 of the act is amended by adding sections
12 to read:
13 § 2101.1. Intestate estate.
14 All or any part of the estate of a decedent not effectively
15 disposed of by will or otherwise passes to his heirs as
16 prescribed in the following sections of this chapter.
17 § 2102.1. Share of the spouse.
18 The intestate share of a decedent's surviving spouse is:
19 (1) If there is no surviving issue or parent of the
1 decedent, the entire intestate estate.
2 (2) If there is no surviving issue of the decedent but
3 he is survived by a parent or parents, the first $20,000,
4 plus one-half of the balance of the intestate estate.
5 (3) If there are surviving issue of the decedent all of
6 whom are issue of the surviving spouse also, the first
7 $20,000, plus one-half of the balance of the intestate
8 estate.
9 (4) If there are surviving issue of the decedent one or
10 more of whom are not issue of the surviving spouse, one-half
11 of the intestate estate.
12 (5) In case of partial intestacy any property received
13 by the surviving spouse under the will shall satisfy pro
14 tanto the $20,000 allowance under paragraphs (2) and (3).
15 Section 3. Sections 2103, 2104 and 2105 of Title 20 of the
16 act are amended to read:
17 § 2103. Shares of others than surviving spouse.
18 The share of the estate, if any, to which the surviving
19 spouse is not entitled, and the entire estate if there is no
20 surviving spouse, shall [descend] pass in the following order:
21 (1) Issue. To the issue of the decedent.
22 (2) Parents. If no issue survives the decedent, then to
23 the parents or parent of the decedent.
24 (3) Brothers, sisters, or their issue. If no parent
25 survives the decedent, then to the issue of each of the
26 decedent's parents.
27 (4) Grandparents. If no issue of either of the
28 decedent's parents but at least one grandparent survives the
29 decedent, then half to the [parental] paternal grandparents
30 or grandparent, or if both are dead, to the children of each
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1 of them and the children of the deceased children of each of
2 them, and half to the maternal grandparents or grandparent,
3 or if both are dead to the children of each of them and the
4 children of the deceased children of each of them. If both of
5 the paternal grandparents or both of the maternal
6 grandparents are dead leaving no child or grandchild to
7 survive the decedent, the half which would have passed to
8 them or to their children and grandchildren shall be added to
9 the half passing to the grandparents or grandparent or to
10 their children and grandchildren on the other side.
11 (5) Uncles, aunts and their children and grandchildren.
12 If no grandparent survives the decedent, then to the uncles
13 and aunts and the children and grandchildren of the deceased
14 uncles and aunts of the decedent as provided in section
15 2104(1) (relating to taking in different degrees).
16 (6) Commonwealth. In default of all persons
17 hereinbefore described, then to the Commonwealth of
18 Pennsylvania.
19 § 2104. Rules of [descent] succession.
20 The provisions of this chapter shall be applied to both real
21 and personal estate in accordance with the following rules:
22 (1) Taking in different degrees. The shares
23 [descending] passing under this chapter to the issue of the
24 decedent, to the issue of his parents or grandparents or to
25 his uncles or aunts or to their children or grandchildren,
26 shall [descend] pass to them as follows: The part of the
27 estate [descending] passing to any such persons shall be
28 divided into as many equal shares as there shall be persons
29 in the nearest degree of consanguinity to the decedent living
30 and taking shares therein and persons in that degree who have
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1 died before the decedent and have left issue to survive him
2 who take shares therein. One equal share shall [descend] pass
3 to each such living person in the nearest degree and one
4 equal share shall [descend] pass by representation to the
5 issue of each such deceased person, except that no issue of a
6 child of an uncle or aunt of the decedent shall be entitled
7 to any share of the estate unless there be no relatives as
8 close as a child of an uncle or aunt living and taking a
9 share therein, in which case the grandchildren of uncles and
10 aunts of the decedent shall be entitled to share, but no
11 issue of a grandchild of an uncle or aunt shall be entitled
12 to any share of the estate.
13 (2) Taking in same degree. When the persons entitled to
14 take under this chapter other than as a surviving spouse are
15 all in the same degree of consanguinity to the decedent, they
16 shall take in equal shares.
17 (3) Whole and half blood. Persons taking under this
18 chapter shall take without distinction between those of the
19 whole and those of the half blood.
20 (4) After-born persons; time of determining
21 relationships. Persons begotten before the decedent's death
22 but born thereafter, shall take as if they had been born in
23 his lifetime.
24 (5) Source of ownership. Real estate shall [descend]
25 pass under this chapter without regard to the ancestor or
26 other relation from whom it has come.
27 (6) Quantity of estate. Any person taking real or
28 personal estate under this chapter shall take such interest
29 as the decedent had therein.
30 (7) Tenancy in estate. When real or personal estate or
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1 shares therein shall [descend] pass to two or more persons,
2 they shall take it as tenants in common, except that if it
3 shall [descend] pass to a husband and wife they shall take it
4 as tenants by the entireties.
5 (8) Alienage. Real and personal estate shall [descend]
6 pass without regard to whether the decedent or any person
7 otherwise entitled to take under this chapter is or has been
8 an alien.
9 (9) Person related to decedent through two lines. A
10 person related to the decedent through two lines of
11 relationship shall take one share only which shall be the
12 larger share.
13 § 2105. Spouse's rights.
14 (a) Widow.--The [shares] share of the estate to which [the]
15 a widow is entitled under this title shall be in lieu and full
16 satisfaction of her dower at common law [, so far as relates to
17 real estate of which the husband dies seised; and her share in
18 real estate aliened by the husband in his lifetime, without her
19 joining in the conveyance shall be the same as her share in real
20 estate of which the husband dies seised. The widow shall receive
21 the same share in a future estate owned by the husband as in an
22 estate of which he dies seised, although the particular estate
23 shall not terminate before the death of the husband].
24 (b) Surviving husband.--The [shares] share of the estate to
25 which [the] a surviving husband is entitled under this title
26 shall be in lieu and full satisfaction of his curtesy at common
27 law [ so far as relates to real estate of which the wife dies
28 seised, and his share in real estate aliened by the wife in her
29 lifetime without his joining in the conveyance shall be the same
30 as his share in real estate of which the wife dies seised. The
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1 surviving husband shall receive the same share in a future
2 estate owned by the wife as in an estate of which she dies
3 seised, although the particular estate shall not terminate
4 before the death of the wife].
5 Section 4. Section 2111 of Title 20 of the act is repealed.
6 Section 5. Title 20 of the act is amended by adding a
7 chapter to read:
8 CHAPTER 22
9 ELECTIVE SHARE OF SURVIVING SPOUSE
10 Sec.
11 2201. Definition of conveyance.
12 2202. Right of election; nonresident decedent.
13 2203. Right of election; resident decedent.
14 2204. Disclaimers, releases and charges against elective share.
15 2205. Transfers for value excluded.
16 2206. Right of election personal to surviving spouse.
17 2207. Waiver of right to elect.
18 2208. Forfeiture of right of election; desertion; nonsupport;
19 slaying.
20 2209. Surviving spouse as witness.
21 2210. Procedure for election; time limit.
22 2211. Determination of effect of election; enforcement.
23 § 2201. Definition of conveyance.
24 "Conveyance" when used in this chapter, except where the
25 context clearly indicates a different meaning, means an act by
26 which it is intended to create an interest in real or personal
27 property whether the act is intended to have inter vivos or
28 testamentary operation.
29 § 2202. Right of election; nonresident decedent.
30 When a married person not domiciled in this Commonwealth
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1 dies, the rights, if any, of his surviving spouse to an elective
2 share in property in this Commonwealth are governed by the laws
3 of the decedent's domicile at death, but the rights of the
4 electing spouse shall be subject to the rights of fiduciaries,
5 custodians and obligors within this Commonwealth and transferees
6 for value of and holders of liens for value on real estate or
7 tangible personal property located in this Commonwealth under
8 section 2211 (relating to determination of effect of election;
9 enforcement).
10 § 2203. Right of election; resident decedent.
11 (a) Property subject to election.--When a married person
12 domiciled in this Commonwealth dies, his surviving spouse has a
13 right to an elective share of one-third of the following
14 property:
15 (1) Property passing from the decedent by will or
16 intestacy.
17 (2) Income or use for the remaining life of the spouse
18 of property conveyed by the decedent during the marriage to
19 the extent that the decedent at the time of his death had the
20 use of the property or an interest in or power to withdraw
21 the income thereof.
22 (3) Property conveyed by the decedent during his
23 lifetime to the extent that the decedent at the time of his
24 death had a power to revoke the conveyance or to consume,
25 invade or dispose of the principal for his own benefit.
26 (4) Property conveyed by the decedent during the
27 marriage to himself and another or others with right of
28 survivorship to the extent of any interest in the property
29 that the decedent had the power at the time of his death
30 unilaterally to convey absolutely or in fee.
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1 (5) Survivorship rights conveyed to a beneficiary of an
2 annuity contract to the extent it was purchased by the
3 decedent during the marriage and the decedent was receiving
4 annuity payments therefrom at the time of his death.
5 (6) Property in excess of $3,000 in value conveyed to
6 any one donee by the decedent during the marriage within one
7 year of his death.
8 In construing this subsection (a), a power in the decedent to
9 withdraw income or principal, or a power in any person whose
10 interest is not adverse to the decedent to distribute to or use
11 for the benefit of the decedent any income or principal, shall
12 be deemed to be a power in the decedent to withdraw so much of
13 the income or principal as is subject to such power, even though
14 such income or principal may be distributed only for support or
15 other particular purpose or only in limited periodic amounts.
16 (b) Property not subject to election.--The provisions of
17 subsection (a) of this section shall not be construed to include
18 any of the following except to the extent that they pass as part
19 of the decedent's estate to his personal representative, heirs,
20 legatees or devisees:
21 (1) Any conveyance made with the express consent or
22 joinder of the surviving spouse.
23 (2) The proceeds of insurance, including accidental
24 death benefits, on the life of the decedent.
25 (3) Interests under any broad-based nondiscriminatory
26 pension, profit sharing, stock bonus, deferred compensation,
27 disability, death benefit or other such plan established by
28 an employer for the benefit of its employees and their
29 beneficiaries.
30 (4) Property passing by the decedent's exercise or
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1 nonexercise of any power of appointment given by someone
2 other than the decedent.
3 § 2204. Disclaimers, releases and charges against elective
4 share.
5 (a) Disclaimers.--Except as provided in subsections (b) and
6 (c), an election by a spouse to take his elective share shall be
7 deemed a disclaimer of any beneficial interest of the spouse in
8 the following, to the extent that such interest would otherwise
9 be payable to or enjoyed by the spouse after the decedent's
10 death:
11 (1) Property subject to the spouse's election not
12 awarded to the spouse as part of his elective share.
13 (2) Property appointed by the decedent's exercise of a
14 general or special power of appointment, and property passing
15 in default of appointment to the extent that the decedent had
16 power to exclude his spouse from any interest therein.
17 (3) Property in any trust created by the decedent during
18 his lifetime.
19 (4) Proceeds of insurance, including accidental death
20 benefits, on the life of the decedent attributable to
21 premiums paid by him, his employer, partner or creditor.
22 (5) Any annuity contract purchased by the decedent, his
23 employer, partner or creditor.
24 (6) Any pension, profit sharing, stock bonus, deferred
25 compensation, disability, death benefit or other plan
26 established by an employer for the benefit of its employees
27 and their beneficiaries, exclusive of the Federal social
28 security system and railroad retirement system, by reason of
29 services performed or disabilities incurred by the decedent.
30 (7) Community property in the proportion that it
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1 represents the decedent's earnings or contributions.
2 (8) All intangible personal property and all real
3 property owned by the decedent and his spouse by the
4 entireties or jointly with right of survivorship, in the
5 proportion that such property represents contributions by the
6 decedent.
7 (9) All intangible personal property and all real
8 property given to his spouse by the decedent during his
9 lifetime which, or the proceeds of which, are still owned by
10 his spouse at the time of the decedent's death.
11 (b) Conveyances and releases.--Except as provided in
12 subsection (c), if any of the foregoing beneficial interests has
13 already been accepted or cannot be disclaimed for any other
14 reason, the spouse shall be entitled to an elective share only
15 if the spouse conveys or releases such interest to those who
16 would take it if the spouse had disclaimed it, and such
17 conveyance or release shall be valid regardless of any
18 spendthrift or similar provision.
19 (c) Charges against elective share.--Notwithstanding the
20 provisions of subsections (a) and (b), the spouse may elect to
21 retain any beneficial interest described in subsection (a) which
22 immediately after the decedent's death consists of property
23 owned by the spouse outright or in fee simple absolute, and have
24 the value thereof at the time of the decedent's death charged
25 against the elective share. The value at the time of the
26 decedent's death of any beneficial interest described in
27 subsection (a), regardless of its form, shall also be so charged
28 against the elective share to the extent that it cannot be
29 disclaimed, conveyed or released.
30 (d) Definition of "beneficial interest".--The term
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1 "beneficial interest" as used in this section shall include any
2 power of appointment or power of consumption and any benefit
3 arising from a direction by the decedent regarding the source of
4 payment of inheritance or estate taxes.
5 (e) Conditional decree.--Any award to the electing spouse
6 shall be conditioned upon:
7 (i) the spouse's delivery, in recordable form in the
8 case of real estate, of such disclaimers, releases or
9 conveyances as may be appropriate to insure protection to
10 the person or persons entitled to disclaimed, released or
11 conveyed property; and
12 (ii) the filing with the court of proof of
13 compliance with the condition.
14 § 2205. Transfers for value excluded.
15 Conveyances and contracts made by the decedent are excluded
16 from the provisions of section 2203 (relating to right of
17 election; resident decedent) and 2204 (relating to disclaimers,
18 releases and charges against elective share), to the extent that
19 the decedent received adequate consideration therefor in money
20 or money's worth.
21 § 2206. Right of election personal to surviving spouse.
22 The right of election of the surviving spouse may be
23 exercised only during his lifetime by him. In the case of a
24 minor or an incompetent spouse, the right of election may be
25 exercised in whole or in part only by the spouse's guardian upon
26 order of the court having jurisdiction of the minor's or the
27 incompetent's estate, after finding that exercise of the right
28 is advisable.
29 § 2207. Waiver of right to elect.
30 The right of election of a surviving spouse may be waived,
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1 wholly or partially, before or after marriage or before or after
2 the death of the decedent.
3 § 2208. Forfeiture of right of election; desertion; nonsupport;
4 slaying.
5 A surviving spouse who under the provisions of section 2106
6 (relating to forfeiture) would not be entitled to a share of the
7 decedent's estate had he died intestate shall have no right of
8 election.
9 § 2209. Surviving spouse as witness.
10 The surviving spouse shall be a competent witness as to all
11 matters pertinent to his rights under this chapter.
12 § 2210. Procedure for election; time limit.
13 (a) How election made.--A surviving spouse's election to
14 take or not to take his elective share shall be by a writing
15 signed by him and filed with the clerk of the orphans' court
16 division of the county where the decedent died domiciled. Notice
17 of the election shall be given to the decedent's personal
18 representative, if any.
19 (b) Time limit.--The election must be filed with the clerk
20 within six months after the decedent's death. The court may
21 extend the time for election as it sees fit for cause shown by
22 the surviving spouse. Failure to file an election in the manner
23 and within the time limit set forth in this section shall be
24 deemed a waiver of the right of election; provided that if a
25 will or codicil is probated more than six months after the
26 decedent's death and the court determines that gross injustice
27 would result, the court may permit an election to be made
28 subject to any limitations with respect to the property to be
29 subject to the election and to be disclaimed by the spouse that
30 the court deems equitable in view of changes of position by the
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1 parties concerned.
2 § 2211. Determination of effect of election; enforcement.
3 (a) Power of court of domicile.--After notice and hearing,
4 the orphans' court division of the county of the decedent's
5 domicile shall determine all matters concerning the spouse's
6 election, including the interests and liabilities of the spouse
7 and others in or with respect to all property, regardless of its
8 situs, which is subject to the election or which must be
9 disclaimed, released or conveyed by the spouse or charged
10 against the elective share.
11 (b) Effect of election.--In exercising its powers under
12 subsection (a), the court shall honor any provision in the
13 decedent's will or other conveyance concerning interests of
14 those other than his spouse in the event of an election. Subject
15 to any such provision, the court shall be guided by the
16 following rules but shall have the power to supplement or to
17 depart from them if, in its opinion, a different determination
18 of the rights of the spouse and others would more nearly carry
19 out what would have been the particular decedent's intention had
20 he known of the election:
21 (1) In general. The elective share shall be charged
22 separately against each conveyance subject to the election,
23 the passing of property by will or intestacy to be treated as
24 a conveyance for this purpose, but the spouse shall have no
25 right to share in any particular item of property within each
26 conveyance. After the value of the electing spouse's
27 fractional interest in each conveyance at the time of
28 distribution is determined, items of property within the
29 conveyance may be allocated disproportionately at
30 distribution values between the elective and nonelective
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1 shares in order to give maximum effect to the decedent's
2 intention with respect to the disposition of particular items
3 or kinds of property. Property in the nonelective share shall
4 be distributed among the beneficiaries of each conveyance in
5 accordance with the rules of abatement or by analogy thereto.
6 (2) Disclaimed interests contingent on survival. If a
7 surviving spouse has disclaimed an interest which would have
8 terminated at the spouse's death or was contingent upon the
9 spouse surviving the decedent, the interests of others shall
10 be as they would have been if the spouse had predeceased the
11 decedent.
12 (3) Other disclaimed interests. Except as above
13 provided, disclaimed interests shall pass to other
14 beneficiaries of the conveyance according to section 2514
15 (relating to rules of interpretation), which may be applied
16 by analogy to inter vivos conveyances or, where those
17 provisions cannot be applied, by way of reversion to the
18 personal representative of the decedent's estate.
19 (4) Windfalls. If the election and disclaimers,
20 releases and conveyances by a surviving spouse in connection
21 therewith result in an increase in the value of the interest
22 of a beneficiary, the court may require contributions from
23 such a beneficiary, directly or by sequestering the
24 disclaimed, released or conveyed interests, in relief of
25 other beneficiaries, so that no beneficiary will receive more
26 value than he would have received in the absence of the
27 election.
28 (c) Enforcement.--The rights of the electing spouse may be
29 enforced, as the court considers appropriate, by orders, decrees
30 or judgments requiring the performance of specific acts by, or
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1 imposing personal liability on:
2 (1) Any fiduciary, custodian or obligor to the extent
3 that he is in possession of property subject to the spouse's
4 election or its proceeds; or
5 (2) The original beneficial recipient of such property
6 or the donee of that recipient, including successive donees,
7 to the extent that each donee is in possession of such
8 property or its proceeds.
9 Any such order, decree or judgment of the orphans' court
10 division of the county of the decedent's domicile under this
11 section may be further enforced as necessary by suits in other
12 courts. The liabilities as determined by the court may be
13 enforced against fewer than all persons against whom relief
14 could be sought but no person shall be subject to contribution
15 in any greater amount than he would have been if full relief had
16 been secured against all persons subject to contribution.
17 (d) Restraining orders.--The court on petition of a
18 surviving spouse may restrain any person from making a payment
19 or transfer of property which may be subject to the spouse's
20 election, either before or after an election is made.
21 (e) Protection of fiduciaries, custodians and obligors.--
22 Unless restrained by court decree, no fiduciary, custodian or
23 obligor, other than the personal representative of the
24 decedent's estate, shall be liable for making such payments or
25 distributions of property subject to the spouse's election as
26 would have been required by the terms of the conveyance or
27 contract in the absence of an election.
28 (f) Transferees and lienholders for value.--No transferee of
29 or holder of a lien against property subject to a spouse's
30 election shall be liable to a surviving spouse to the extent
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1 that the transferee or lienholder has given adequate
2 consideration, unless and to the extent that a certified copy of
3 an order or decree of court providing to the contrary with
4 respect to real property has been recorded in the office for the
5 recording of deeds of the county where the real estate lies
6 prior to the recording of the transfer or the entry of the lien
7 of record. The recording of any such order or decree shall be
8 indexed in the grantor's index under the name of the decedent.
9 Section 6. Sections 2508, 2509, 2510, 2511, 2512 and 2513 of
10 Title 20 of the act are repealed.
11 Section 7. The definition of the term "conveyance" and the
12 introductory paragraph of section 6101 of Title 20 of the act
13 are amended to read:
14 § 6101. Definitions.
15 The following words and phrases, when used in this chapter,
16 unless the context clearly indicates otherwise, shall have the
17 meanings ascribed to them in this section:
18 * * *
19 "Conveyance." Means an act by which it is intended to create
20 an interest in real or personal property whether the act is
21 intended to have inter vivos or testamentary operation. [Except
22 as used in section 6111 of this code (relating to conveyances to
23 defeat marital rights), it] It shall include an act by which a
24 power of appointment whenever given is exercised.
25 Section 8. Section 6111 of Title 20 of the act is repealed.
26 Section 9. Chapter 61 of Title 20 of the act is amended by
27 adding a section to read:
28 Section 6111.1. Modification by divorce.--If the conveyor is
29 divorced from the bonds of matrimony after making a conveyance,
30 all provisions in the conveyance which were revocable by him at
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1 the time of his death and which were to take effect at or after
2 his death in favor of or relating to his spouse so divorced
3 shall thereby become ineffective for all purposes.
4 Section 10. This act shall take effect immediately.
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