Pennsylvania Inheritance Laws for Spouses

By Brette Sember, J.D.

Pennsylvania Inheritance Laws for Spouses

By Brette Sember, J.D.

Pennsylvania protects the right of spouses to inherit from each other, requiring that a spouse receive a portion of the estate when the other spouse dies, even if there is a will and it does not provide for an inheritance. When there is no will, statutes known as intestate laws determine how your property is distributed.

Old couple hugging each other outside during the fall

Intestate Succession

When a spouse dies without a will, Pennsylvania intestate laws determine who inherits the estate. In every scenario detailed below, the surviving spouse receives an inheritance. In general, this is how the laws work in the state:

  • If the deceased spouse has no living parents or children, the spouse inherits all.
  • If the deceased has living children but no living parents, the spouse inherits the first $30,000 and then divides the rest of the estate with the children, with half going to the spouse and half going to the children, no matter how many there are. If there are any living children who are not also children of the surviving spouse, then the spouse does not get the first $30,000 and splits the entire estate 50-50 with the children.
  • If the deceased has living parents but no living children, the spouse inherits the first $30,000 and splits the remainder of the estate with the parents.

Spouse's Share with a Will

If a spouse dies with a will, the surviving spouse cannot be completely disinherited. If the deceased has a will that leaves nothing to the spouse, the surviving spouse can exercise what's called an elective share, which gives the surviving spouse the right to inherit one-third of the deceased's estate in Pennsylvania. This includes probate items only, not nonprobate assets such as life insurance or trusts that are not impacted by this law.

To exercise the elective share, the surviving spouse must notify the probate court in writing within six months of the death or six months after probate on the estate opens, whichever provides the most time. If the surviving spouse is included in the will but is not given an amount equal to what the elective share would be, the survivor can file for the elective share.

If a person marries after writing a will but dies before updating the document to include the new spouse, the surviving spouse is entitled to the inheritance he would have received under state intestate succession laws. In other words, the surviving spouse receives the same as if the deceased spouse had died without a will.

When the Elective Share Does Not Apply

There are several situations in which the spousal elective share and intestate succession laws do not apply:

  • If you are divorced at the time of death, the survivor has no inheritance rights through the elective share or intestate inheritance.
  • If grounds for divorce were established in a divorce case—even if the divorce is not final—before the death, there is no right to the elective share or intestate inheritance.
  • If a surviving spouse willfully neglected or deserted the deceased spouse before the death, there is no elective share or intestate inheritance, even if no divorce case is filed.
  • If the spouses signed a prenuptial agreement and the surviving spouse waived the right to the elective share, the prenup holds and no elective share or intestate inheritance is available.

Understanding spousal rights of inheritance can help you plan your estate in Pennsylvania. If you are the surviving spouse, then these laws show that you are entitled to an inheritance no matter what. Regardless, it's still important to have a last will and testament that outlines exactly what you'd like your wishes to be for your surviving spouse and beneficiaries.

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