Restrictions on Testamentary Transfers: Family Protections

Question 1

Surviving Spouse’s Elective Share

Answer 1

• Allows a spouse who has been cut out of a will or whose share has been significantly cut down to elect to take instead a statutorily allocated share of the will
• SS decides whether to take under the will or use the stattue

Question 2

Intestate Share vs. Elective Share

Answer 2

Elective Share

• Is what spouse gets if she/he has not been give a sufficient amount under the will

Intestate Share

• Is what spouse gets if there is no wil

Question 3

How much is the elective share?

Answer 3

SS may elect to take 1/3 of decedent’s estate

Question 4

Elective Share does not include

Answer 4

1. Property subject to an irrevocable trust
2. Property that has already been conveyed away with the approval of the surviving spouse, pension or life insurance proceeds

3.

Question 5

How to file to take an elective share

Answer 5

1. Must be in writing
2. Must be filed within latter of 6 months after decedent’s death OR the close of probate process (whichever comes later)
3. Must be filed in the orphans court in the county where the dead party was domiciled

Question 6

Effect of taking an elective share

Answer 6

If the spouse takes her elective share, s/he disclaims any interest in any of the following property to which s/he may have been entitled under the will or intestacy:

• property subject to the spouse’s election but not awarded to the spouse;
• property appointed by the decedent’s exercise of a general or special power of appointment
• property of any trust created by the decedent during his lifetime
• annuities, pension, w/ exception of social security
• community property,
• personal property and real property owned by the decedent and his spouse by the entirety or jointly, in the proportion that such property represents contributions of the decedent; and
• all personal property and real property given to the spouse by the decedent during his lifetime that is still owned by the spouse at the time of the decedent’s death

Question 7

Revocation of Elective Share

Answer 7

SS can revoke an elective share if done within a reasonable time AND SS did not have clear knowledge of the facts of the facts when she made her choice

Question 8

Who cannot claim elective share?

Answer 8

1. Ex-spouse
2. If you willfully neglected or deserted the decedent spouse (if 1 year or more prior to death)

Question 9

Waiving Elective Share in Prenup

Answer 9

• Prenuptial agreements that waive an elective share
• Are enforceable under PA law
• so long as there was full financial disclosure to the spouse and
• agreement to waive was essentially equitable

Question 10

Omitted Spouse

Answer 10

If the testator marries after making a will, the surviving spouse shall receive:

• intestate share
• EXCEPTION:
  
  • Decedent intentionally left out spouse from will

Question 11

Omitted children living at the time of execution of the will

Answer 11

• Will get no forced share = nothing;
• disinheritance must be done by express language
• these children cannot elect against the will

Question 12

Omitted children born after execution of will

Answer 12

• Are entitled to claim their intestate share
• EXCEPTION:
  
  • if the omission was intentional

Question 13

Family Exemption

Answer 13

• If a decedent dies domiciled in Pennsylvania, the spouse, or
• the children who are members of the decedent’s household if there is no spouse,
• may retain or claim as an exemption either
  
  • real or personal property,
  • or both,
  • not previously sold by the personal representative, to the value of $3,500

Specific devises or bequests may not be retained or claimed if other assets are available for the exemption