CHAPTER 10
 

MISCELLANEOUS PROCEEDINGS

 

 
 
 
 

B.

Spouse’s Election
     
   
1.

When Available

     
   

In addition to the family exemption, a surviving spouse may elect against the provisions of the will and take a one-third (1/3) share of: (i) property passing from the decedent by will or intestacy; (ii) income from or use of, for the remaining life of the spouse, property conveyed by the decedent during the marriage to the extent that the decedent at the time of death had the use of property or an interest in or power to withdraw the income therefrom; (iii) property conveyed by the decedent during lifetime to the extent that the decedent at the time of death had a power to revoke the conveyance or to consume, invade or dispose of the principal for his or her own benefit; (iv) property conveyed by the decedent during the marriage to the decedent and another with right of survivorship to the extent of any interest in the property that the decedent had the power at the time of death to convey unilaterally absolutely or in fee; (v) survivorship rights conveyed to a beneficiary of an annuity contract to the extent it was purchased by the decedent during the marriage and the decedent was receiving annuity payments therefrom at the time of death; and (vi) property conveyed by the decedent during the marriage and within one (1) year of death to the extent that the aggregate amount so conveyed to each donee exceeds $3,000, valued at the time of conveyance. See PEF Code §2203(a). The classes of property not subject to election are set forth in PEF Code §2203(b). A surviving spouse’s election to take an elective share is deemed to be a disclaimer of the classes of property set forth in PEF Code §2204.

The right to elect is a personal right and cannot be exercised by the personal representative of a deceased spouse. See PEF Code §2206. It is forfeited under certain circumstances set forth in PEF Code §2208.

The amount that a surviving spouse is entitled to take by election under PEF Code Chapter 22 should not be confused with what is sometimes call the “spouse’s allowance,” which is the dollar amount to which a surviving spouse is entitled under the intestate laws, PEF Code Chapter 21.

     
2.   When Made
     
    The surviving spouse’s election must be made within six (6) months after the decedent’s death or six (6) months after the date of probate, whichever is later. See PEF Code §2210(b). The Court may, however, grant an extension of time under certain conditions. A surviving spouse desiring an extension of time must file a petition complying with Phila.O.C. Rule 12.3.C with the Clerk of the Orphans’ Court within the foregoing time limit.

In some circumstances, the election should be made as promptly as possible. For example, where the decedent had an interest in an inter vivos trust, the electing spouse should consider immediately petitioning the Court to restrain the payment or transfer of property. See PEF Code §2211(c). Absent such an order, the trustee is free to make trust distributions notwithstanding the spouse’s claim. See PEF Code §2211(e).
     
3.   How Made
     
    The surviving spouse files a signed written election with the Clerk of the Orphans’ Court of the county in which the decedent was domiciled at death. See PEF Code §2210(a). Notice of the election must be given to the decedent’s personal representative, if any. Except as provided in PEF Code §2507(3), failure to make a proper election is deemed to be a waiver of the right of election. See PEF Code §2210(b).

Attorneys differ as to whether the personal representative or his or her counsel is under a duty to inform the surviving spouse of possible rights of election. See Wilson Estate, 25 Fiduc. Rep. 278 (O.C. Div. Allegh. 1975) and Amon Estate, 27 Fiduc. Rep. 1 (O.C. Div. Mont. 1976), which hold that counsel for the estate has no such duty. The advisable course for the personal representative is to establish a record that the surviving spouse has been advised of his or her elective rights. Until case law develops more exact guidelines, counsel must be vigilant in assembling all relevant information about property subject to elective rights, the consequences of disclaimers and post-death planning. The personal representative should consider whether the surviving spouse should be advised to seek separate counsel to protect his or her elective share rights. See Fiduciary Review, March 1967 and November 1969.
 

 


 
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