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Spousal Elections: What May Happen If Your Spouse Disinherits You

| Jan 19, 2021 | Firm News

Written By:  Robert L. Buzzendore, Esquire

Pennsylvania does not allow a spouse to disinherit the other spouse.  If a spouse is disinherited, the law provides different remedies depending on whether the spouse died with or without a Will.  If the spouse died without a Will (“intestate”), the surviving spouse receives all intestate assets if there are no children.  If the couple had children together, the surviving spouse receives $30,000 plus half of the balance.

If the deceased spouse had a Will (“testate”) and disinherited the other spouse or provided an insufficient amount, the surviving spouse may elect against the Will.  The surviving spouse would receive 33% of the probate assets.  The election must be made within 6 months of the date of death or the date of probate, whichever is later.  The failure to file an election results in a waiver of the right to claim a spouse’s probate assets.

It is important to remember the assets passing through a testate or intestate estate are the only assets available to the surviving spouse.  Generally, these assets do not include assets with a beneficiary designation, such as life insurance or a 401(k), which pass directly to the beneficiary.  Also, a prenuptial agreement may eliminate the right to receive estate assets.  Depending on the nature of the assets, there may not be many estate assets to pass to a surviving spouse.

There may be valid reasons to disinherit a spouse.  A spouse may have children from a prior marriage and a desire to provide for them, or there may be a lack of need due to previous gifts and support to the other spouse, or there may be estrangement.

A recent appeals court case dealt with a surviving wife who filed an election against her husband’s Will.  In re Estate of Jabbour, 2020 PA Super 244, 1275 WDA 2019. She and husband had signed a prenuptial agreement but evidently neither waived their rights to collect against the other’s estate.  Husband died and Wife elected against his Will because she was not familiar with his assets.  Husband was very secretive about his financial affairs.  Wife filed an election to preserve her rights.

After wife obtained additional information about his assets, she filed a petition to withdraw her election.  Although it was not discussed in the decision, wife would probably receive more assets by not electing against the Will. One of husband’s adult children from a prior relationship disagreed with her attempt to withdraw the election.  The orphans’ court granted the petition and husband’s child filed an appeal to Superior Court.

The Superior Court affirmed the orphans’ court decision.  It held wife properly withdrew her objection despite the delay in filing because she only recently discovered the nature and extent of husband’s assets.

The key is to ensure you have discussed and planned estate matters with your spouse.  Have you considered the situation where your spouse died testate and you were disinherited?  If there is no Will and there are children, have you considered whether the first $30,000 plus half the balance is sufficient?  What if the estate assets are minimal because a majority of the assets had beneficiary designations or were transfer on death accounts with other named persons? If there are few assets in the estate, there will be few assets to receive whether in intestacy or by electing against the Will.

If you are disinherited, you have a limited time to act upon the death of your spouse.  Meanwhile, planning for life changing events with your spouse may ensure peace of mind and provide assurance during future chaotic times.  If you have any questions regarding Wills or estate administration matters, Hoffmeyer & Semmelman is available to assist you.

© Copyright by Hoffmeyer & Semmelman LLC, December 2020