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Pennsylvania Surviving Spouse Rights in Probate
Support GuidePennsylvania10 min read

Pennsylvania Surviving Spouse Rights in Probate

Pennsylvania surviving spouse rights cover the one-third elective share, the $3,500 family exemption, intestate shares, and the six-month election deadline.

By Settled Editorial

Pennsylvania protects a surviving spouse even when a will tries to leave them little or nothing. The centerpiece is the elective share, a right to claim one-third of the property the deceased spouse controlled at death. A separate family exemption and, where there is no will, an intestate share add to that protection. Because these rights exist on top of what a will says, a spouse cannot be fully cut out of a Pennsylvania estate.

These rights run through the county Register of Wills, which handles the will and the grant of letters, while disputes and formal elections are heard in the Orphans' Court. This guide explains each protection, the property it reaches, and the deadlines that control it. Treat it as a planning map, and confirm the numbers with the Register of Wills in the county where the estate is administered.

Overview of Spousal Rights

Pennsylvania's Probate, Estates and Fiduciaries Code (Title 20) gives a surviving spouse several distinct protections. Each one stands on its own, and a spouse can often benefit from more than one.

  1. Elective share - the right to take one-third of certain property instead of accepting what the will provides.
  2. Family exemption - a $3,500 allowance from estate property that the surviving spouse can claim first.
  3. Intestate share - the statutory share a spouse inherits when there is no valid will.

The family exemption is separate from, and in addition to, the elective share or the intestate share. A surviving spouse who inherits under a will or by intestacy can still claim the family exemption on top of that inheritance. The one right a spouse cannot combine is the election itself against the will and simply taking the larger gift the will already provides, since the election is a choice to take the statutory one-third instead of the will's terms.

The Elective Share

What the elective share is

Under 20 Pa.C.S. Section 2203, the right of election of a surviving spouse of a resident decedent, the surviving spouse may choose to take one-third of the property subject to the election rather than accept what the will leaves them. The fraction is one-third. It is not a percentage the spouse and the estate negotiate, and it does not shrink because the will names other beneficiaries.

Why it exists

The elective share stops a spouse from being disinherited. If a will leaves the surviving spouse a token gift, or nothing, the spouse can elect against the will and claim the one-third statutory share instead.

What property the election reaches

Pennsylvania's elective share is broader than the probate estate. It reaches not only property passing by will or intestacy but also defined nonprobate transfers, including:

  • Property the decedent could revoke or consume during life
  • Certain survivorship property
  • Large gifts the decedent made within one year of death

This wider reach matters because it prevents a spouse from being sidestepped through beneficiary designations and lifetime transfers that would otherwise avoid the will. The exact assets pulled into the calculation are fact-specific, so a spouse considering an election should have the property list reviewed by a Pennsylvania attorney.

How the spouse claims it

The surviving spouse claims the elective share by filing a written election with the clerk of the Orphans' Court in the county where the estate is being administered. Because the choice is between the will's terms and the statutory one-third, the spouse should compare both before filing. See the Pennsylvania intestate succession guide for how shares work when there is no will to elect against.

The Family Exemption

The $3,500 allowance

Separate from the elective share, Pennsylvania allows a family exemption of $3,500 under 20 Pa.C.S. Section 3121. The surviving spouse of a decedent domiciled in Pennsylvania may retain or claim $3,500 in value from the real or personal property of the estate, or from both.

Who can claim it and in what order

The family exemption follows a fixed order of claimants:

  1. The surviving spouse of a decedent domiciled in Pennsylvania.
  2. If there is no spouse, or the spouse has forfeited the right, children who were members of the same household as the decedent.
  3. If there are no such children, a parent or parents who were members of the same household.

Limits on the exemption

Property that was specifically devised or bequeathed to someone else generally may not be taken for the exemption if other assets are available to satisfy it. The family exemption is also counted when measuring Pennsylvania's small-estate threshold, so it interacts with the simplified process described in the Pennsylvania small estate guide. The $3,500 exemption is claimed in addition to any inheritance the spouse receives, not subtracted from it.

Intestate Share

When a Pennsylvania resident dies without a valid will, the surviving spouse takes a statutory share set by 20 Pa.C.S. Section 2102. The share depends on who else survives the decedent:

Who else survivesSurviving spouse takes
No issue and no parentThe entire intestate estate
A parent or parents, no issueThe first $30,000 plus one-half of the balance
Issue, all of whom are also the spouse's issueThe first $30,000 plus one-half of the balance
Issue, one or more not the spouse's issueOne-half of the intestate estate, with no $30,000 preference

The $30,000 preferential amount appears in two of the four scenarios and drops out in the stepfamily case, where at least one surviving child is not also the spouse's child. Intestate succession governs only the probate estate, so joint accounts, beneficiary designations, and trust assets pass outside these rules. The full order of heirs is covered in the Pennsylvania intestate succession guide.

Waiver and Forfeiture

Spousal rights in Pennsylvania are strong, but they are not absolute. A spouse can give them up in advance, and Pennsylvania law can take them away in defined situations.

Waiver by agreement

A surviving spouse can waive the elective share and other rights through a valid written agreement, such as a prenuptial or postnuptial agreement. To hold up, the agreement generally must be in writing, entered voluntarily, and made with fair disclosure of the other spouse's finances. A Pennsylvania attorney can review whether a signed agreement actually waived these rights.

Forfeiture under Pennsylvania law

Under 20 Pa.C.S. Section 2106, a spouse can forfeit an intestate share by willfully and maliciously deserting the decedent, or by willfully neglecting or refusing to perform the duty to support the decedent. A parent can forfeit a share for failing a duty of support to a child. These cases are fact-specific and usually require a court ruling. Forfeiture also shifts the family exemption, since it passes to household children when a surviving spouse has forfeited the right.

The slayer rule

A person who participates in the willful and unlawful killing of the decedent cannot inherit from the victim. Pennsylvania's slayer statute (20 Pa.C.S. Sections 8801 through 8802) treats the slayer as having predeceased the decedent for property that would otherwise pass to them.

Deadlines

The elective share is time-limited. A surviving spouse who waits too long can lose the right to elect against the will.

RightDeadline
Elective share electionSix months after the decedent's death, or six months after the date of probate, whichever is later (20 Pa.C.S. Section 2210)
Family exemptionClaimed during administration, before the estate distributes the property it would cover

Because the two windows run on different clocks, a surviving spouse should calendar the election deadline early and raise the family exemption with the personal representative as administration begins. Missing the election window can force the spouse to accept the will's terms even when the statutory one-third would have been larger.

Steps to Protect Your Rights

A surviving spouse does not have to wait passively for the personal representative to act. A few early steps keep these rights available.

  • Get a copy of the will and the estate filings. You cannot compare the will against the one-third elective share until you know what the will actually provides. Ask the personal representative, or request the file from the Register of Wills.
  • Ask about the inventory and the assets. Because the elective share can reach nonprobate transfers, the full picture matters. Understanding what the decedent owned and how it was titled tells you whether an election is worth making.
  • Calendar the election deadline. Note both the date of death and the date of probate, and track the later of the two six-month windows so the election right does not lapse.
  • Raise the family exemption early. The $3,500 exemption is easiest to claim before the property it would cover is distributed, so mention it to the personal representative as administration opens.
  • Speak with a Pennsylvania probate attorney before electing. The choice between the will and the statutory one-third, and the list of property the election reaches, are fact-specific. A short consultation can show which option leaves you better off.

Frequently Asked Questions

Can my spouse disinherit me in Pennsylvania?

Not completely. Even if the will leaves you little or nothing, you can file an election and take a one-third elective share of the property subject to the election under 20 Pa.C.S. Section 2203. You can also claim the separate $3,500 family exemption. A will cannot erase these statutory rights.

How much is the Pennsylvania elective share?

The elective share is one-third of the property subject to the election. That property includes not only assets passing by will or intestacy but also certain nonprobate transfers, such as property the decedent could revoke or consume and large gifts made within one year of death.

What is the family exemption and who can claim it?

The family exemption is a $3,500 allowance from estate property under 20 Pa.C.S. Section 3121. The surviving spouse of a decedent domiciled in Pennsylvania claims it first. If there is no spouse or the spouse forfeited the right, it passes to children who lived in the same household, then to a parent or parents of the same household.

Does a surviving spouse pay Pennsylvania inheritance tax?

No. Pennsylvania taxes transfers to a surviving spouse at a rate of 0 percent. Other heirs, such as children and siblings, are taxed at different rates. The Pennsylvania inheritance tax guide explains the categories and timing.

Related Guides

Sources

This guide provides general information about surviving spouse rights in Pennsylvania. County practice and individual circumstances vary. Consult with a Pennsylvania probate attorney about your specific situation. It is not legal advice.