Spousal Election: Taking Against the Will

Pennsylvania law gives a surviving spouse the right to reject the provisions of the decedent's will and instead claim a one-third share of the property subject to the elective share (20 Pa.C.S. § 2203). This is one of the most consequential decisions in probate — and one of the most misunderstood.

The Basic Right — § 2203

Regardless of what the will says, the surviving spouse can elect to take one-third of certain property. This means a will that leaves the surviving spouse nothing — or $1 — doesn't work the way the testator intended. The spouse can override it. The election is filed with the Clerk of the Orphans' Court, with a copy mailed to the personal representative or their attorney.

What "Property" Is Subject to the Election?

This is where most people — and some attorneys — get it wrong. The elective share is not one-third of the probate estate. Under § 2203, the surviving spouse is entitled to one-third of the following:

• Property passing under the will or by intestacy
• Income from the decedent's assets during administration
• Property the decedent conveyed during the marriage to the extent the decedent retained control or income (§ 2203(b)) — this is designed to prevent the decedent from gifting everything away to defeat the election

However, the election does not reach:

• Life insurance payable to named beneficiaries (not the estate)
• Retirement account balances payable to named beneficiaries (subject to federal preemption for ERISA plans)
• Joint accounts with right of survivorship that pass by operation of law to a non-spouse

This creates a significant planning reality: a decedent who titled most assets in joint tenancy with a child, named children as beneficiaries on retirement accounts, and left only a modest probate estate has effectively reduced the pool available for the spousal election — sometimes dramatically.

The Offset — § 2204: What the Spouse Must Give Up

A spouse who elects against the will doesn't get the elective share on top of what the will provides. Section 2204 requires the electing spouse to release:

• Any provision in the will in favor of the spouse
• The spouse's interest in property passing by intestacy
• The family exemption ($3,500 under § 3121) — though the spouse can still claim it if the estate is insufficient

This means the election is a trade: the spouse gives up what the will provides and takes one-third instead. The math only makes sense if one-third of the property subject to election is more than what the will leaves the spouse. In many estates, it isn't — which is why the decision to elect requires careful analysis, not a reflexive filing.

When Does the Election Make Sense?

The spousal election is a strategic decision, not an emotional one. It typically makes sense when:

• The will leaves the spouse substantially less than one-third of the available property — common in blended family situations where the decedent left most assets to children from a prior marriage
• The decedent disinherited the spouse entirely — the election guarantees at least one-third
• The will creates a trust for the spouse's benefit that is too restrictive — income-only, no invasion rights, hostile trustee. One-third outright may be worth more than a lifetime interest in a controlled trust.

It typically does not make sense when:

• The will already provides more than one-third of the available property
• Most assets pass outside the probate estate (life insurance, retirement accounts, joint accounts) and are therefore not subject to the election
• The will creates a trust that provides more total value than one-third outright — consider the income stream over the spouse's life expectancy
• The election would trigger litigation with the decedent's children that costs more than the marginal benefit

Waiver of the Elective Share

The surviving spouse can waive the right to elect — but only through a properly executed prenuptial or postnuptial agreement under 23 Pa.C.S. § 3106. The waiver must be knowing, voluntary, and made with reasonable disclosure of assets. A prenup that says "each party waives all rights in the other's estate" — if properly executed — eliminates the elective share entirely.

This is the primary reason estate planning attorneys recommend prenuptial agreements for second marriages. Without one, the surviving spouse retains the right to take one-third regardless of what the will says — and the children from the first marriage may receive substantially less than the decedent intended.