Estate Planning · Probate · Wills

Elective Share and Omitted Spouse in Pennsylvania: Rights When a Will Cuts Out a Spouse

---

A surviving spouse in Pennsylvania generally cannot be disinherited by will alone without their own consent in a valid marital agreement. Under 20 Pa.C.S. §2203, a surviving spouse has the right to claim one-third of the decedent’s estate regardless of what the will says, unless the spouse waived that right in a valid prenuptial or postnuptial agreement. A spouse who married the decedent after the will was executed and was not provided for in the will has a separate claim as an omitted spouse under 20 Pa.C.S. §2507. Both rights have strict deadlines and must be asserted during estate administration.

Pennsylvania’s elective share statute is codified at 20 Pa.C.S. §2203. The omitted spouse statute is at 20 Pa.C.S. §2507. Estate administration matters are handled through the Pennsylvania Unified Judicial System Register of Wills and Orphans’ Court.

Stephen H. Lebovitz is an estate planning and probate attorney in Pittsburgh who represents surviving spouses in elective share proceedings, omitted spouse claims, and estate administration disputes throughout Western Pennsylvania.

A will that leaves a spouse nothing, or leaves a spouse far less than they expected, is not necessarily the end of the analysis. Pennsylvania law gives every surviving spouse a floor of protection that a will cannot eliminate without the spouse’s own consent. Understanding which right applies, what the share is, and when it must be claimed determines whether the protection is available.

At Lebovitz & Lebovitz, P.A., we represent surviving spouses in elective share proceedings and omitted spouse claims throughout Pittsburgh and Western Pennsylvania.

The Elective Share: One-Third of the Estate Regardless of the Will

The elective share is a statutory right, not a will provision. It exists because the spouse chooses to assert it against the will.

Under 20 Pa.C.S. §2203, a surviving spouse may elect to take one-third of the decedent’s estate in lieu of whatever the will provides. This right applies whether the will leaves the spouse nothing at all, leaves a token amount, or leaves a significant sum that is still less than one-third of the estate’s value. The election is a choice the spouse makes after death. If the will already provides the spouse with at least one-third of the estate, electing against the will produces no benefit. If the will provides less, the election allows the spouse to claim the difference. The elective share base under §2203 is broader than just the probate estate. It includes property passing by will or intestacy, income or use of property conveyed during the marriage where the decedent retained an interest, property the decedent had power to revoke at death, and certain joint tenancy and survivorship transfers made during the marriage. It excludes life insurance proceeds paid to named beneficiaries, most retirement account proceeds, and property conveyed more than one year before death without retained powers. The elective share calculation is often more complex than it appears because it reaches certain non-probate transfers the decedent made while retaining control. The election must be filed with the clerk of the Orphans’ Court within six months after the decedent’s death or within six months after the date of probate, whichever is later, under 20 Pa.C.S. §2210. The court may extend the deadline on timely application, but only if the extension is requested before the original period expires. A spouse who misses the deadline without obtaining an extension permanently forfeits the right to elect.

When a Spouse Was Married After the Will Was Executed

A spouse who married the decedent after the will was written has a separate statutory claim that may be stronger than the elective share.

Under 20 Pa.C.S. §2507, a spouse who married the testator after the execution of the will and who is not provided for in the will receives the share they would have taken under intestate succession, as if the testator had died without a will, unless the omission was intentional or the testator provided for the spouse through a lifetime transfer intended as a substitute for a testamentary provision. This is the omitted spouse provision, the spousal equivalent of the pretermitted heir statute for children. The intestate share for a surviving spouse depends on who else survives and whether those survivors are also the surviving spouse’s children. Under 20 Pa.C.S. §2102, if the decedent is survived only by the spouse and by children who are also children of the surviving spouse, the spouse takes the first $30,000 plus one-half of the balance. If the decedent is survived by children who are not children of the surviving spouse, the spouse takes one-half of the estate with no $30,000 preference. In a blended family where the decedent had children from a prior relationship, the spouse receives only one-half under intestacy, which may be less favorable than the elective share of one-third depending on the estate size. A spouse who married after the will was written should calculate both the elective share and the intestate share and assert whichever produces the better result. The same six-month deadline applies to both claims.

When the Elective Share Does Not Apply

The elective share can be waived, and an intentionally omitted spouse has no claim under the omitted spouse statute.

A surviving spouse who signed a valid prenuptial or postnuptial agreement waiving their elective share rights has no elective share claim regardless of what the will provides. Pennsylvania enforces marital agreements that clearly and voluntarily waive spousal rights, provided the agreement was executed without fraud or duress and with adequate disclosure of the other party’s assets. The validity of the waiver is a separate question from the will contest itself, and a spouse who believes the agreement was signed under duress or without adequate disclosure should raise that issue promptly. For the omitted spouse claim under §2507, the statute does not apply when the omission was intentional. A will that explicitly acknowledges the post-execution marriage and intentionally makes no provision for the spouse, or a will that includes a disinheritance clause covering future spouses, defeats the omitted spouse claim. A will that is simply silent about the marriage, with no language addressing the subsequent relationship, will generally support the omitted spouse’s claim on the ground that the omission was an oversight rather than a deliberate choice.

How the Elective Share Interacts With Other Estate Assets

The elective share is calculated against the probate estate. Assets passing outside the estate generally do not count toward satisfying it.

Pennsylvania’s elective share applies to the net probate estate. Assets that pass outside probate, including jointly held real estate with survivorship rights, retirement account proceeds paid to named beneficiaries, and assets in a revocable trust, are generally not included in the elective share calculation and do not satisfy the spouse’s elective share entitlement unless the transfers were made with the intent to defeat the spouse’s rights. A decedent who placed substantial assets in a revocable trust during life, leaving only a small probate estate, may have effectively reduced the elective share to a fraction of total wealth. Pennsylvania courts have examined whether transfers to trusts and other non-probate mechanisms were made in fraud of spousal rights, but the standard for challenging those transfers is demanding. A spouse who suspects that the estate was deliberately structured to minimize the elective share should discuss the full asset picture with counsel before accepting the calculation the executor presents.

How to Assert an Elective Share or Omitted Spouse Claim

Both claims are asserted by filing with the Register of Wills in the county where the estate was opened, within six months of the grant of letters.

The election against the will is filed as a formal document with the Register of Wills. The Register notifies the executor and the estate proceeds with the elective share claim treated as a priority obligation of the estate. The executor must satisfy the elective share before distributing the remainder to other beneficiaries. If the executor disputes the calculation or contests the claim, the matter is resolved in the Orphans’ Court. An omitted spouse claim proceeds similarly, filed as a petition in the Orphans’ Court with notice to all interested parties. In either case, the six-month deadline runs from the date of death or the date of probate, whichever is later. A spouse who does not know the will’s contents, or does not know that probate has been opened, should act immediately upon learning of the estate proceeding to preserve both options before the window closes.

For related estate matters, see our pages on intestate succession in Pennsylvania, pretermitted heirs in Pennsylvania, estate administration and probate, and family settlement agreements.

This page was prepared for informational purposes by the estate planning attorneys at Lebovitz & Lebovitz. Pennsylvania’s elective share statute is at 20 Pa.C.S. §2203. The omitted spouse statute is at 20 Pa.C.S. §2507.

---

This page provides general information about Pennsylvania law. It does not constitute legal advice. Every case is different. For advice about your specific situation, contact Lebovitz & Lebovitz, P.A.