The loss of a spouse is an emotionally challenging and overwhelming experience. In addition to the grief that accompanies such a loss, surviving spouses often face significant financial and legal complexities regarding their deceased partner's estate. One of the most pressing questions that may arise is: What are the rights of a surviving spouse to their deceased partner’s estate?
The Importance of Marriage in Estate Planning
In Pennsylvania, marriage fundamentally alters the dynamic of estate planning. A spouse can hold significant rights to inherit from the estate of a partner. The nature of those rights depend on whether the partner had a Will and if they did, when that Will was prepared in relation to the date of the marriage.
When Your Deceased Spouse Has No Will: Intestate Laws
When a person dies without a will, they are said to have died "intestate." What this means is that the person elected to “waive” their right to create a plan to take care of their spouse and family after they are gone. Pennsylvania has established a set of rules regarding how a deceased person's assets will be distributed in such cases. These rules fall under the intestacy laws of the state, which prioritize family members according to their relationship to the deceased.
For a surviving spouse, the laws are particularly favorable:
If there are surviving children: If the deceased spouse has children, the surviving spouse will inherit the first $30,000 of the estate, plus half of the remaining balance. This means that as a surviving spouse, you are entitled to a significant portion of your deceased spouse’s assets, even if there are children involved.
If there are no surviving children: If the deceased spouse does not have any children, the surviving spouse is entitled to the entire estate. This ensures that the surviving spouse is fully supported, even in the absence of a will.
When Your Deceased Spouse has a Will Prepared During the Marriage
It may come as a surprise but there’s nothing unlawful about someone excluding their spouse from their Will or Living Trust. That can come about for a variety of reasons:
It’s Planned: In second marriages, it’s not unusual for spouses to partially or completely exclude one another from their Wills so that their children from prior relationships are not disinherited. This might also occur in anticipation of senior care costs to preserve assets for one spouse while increasing the possibility that the other qualifies for government benefits to pay for expensive nursing home care.
It’s a Surprise: It’s certainly shocking for spouses to find out they’ve been disinherited. Sometimes this happens because of addiction or spending problems; others because of unforgiven problems in the marriage.
Not Surprising at All: Some people who have long since been separated remain married for a variety of reasons. It is not at all unusual for them to prepare new Wills or Living Trusts making other provisions for their estates.
Pennsylvania’s elective share law allows a surviving spouse to choose between what is left to them by the deceased spouse or to choose an elective share of the decedent spouse’s property. Sometimes referred to as the “forced” share, the elective share means that, despite what the decedent spouse may have left to the surviving spouse, the surviving spouse can choose to take an elective share of the estate instead. This, of course, is chosen when the surviving spouse would receive a larger inheritance under the elective share than what the decedent spouse left to them.
How Much is the Elective Share?
The elective share is one-third of the decedent spouse’s estate. Not all property will be included in the elective share calculation. Life insurance policy proceeds of the decedent, for instance, will not be included. Retirement and deferred compensation plans that are controlled by a valid beneficiary designation also fall outside the purview of the elective share. It is also important to note that a surviving spouse who chooses the elective share waives the right to pursue other items to which they might otherwise be entitled.
When a Partner has a Will Prepared Before the Date of Marriage
In Pennsylvania, if someone dies with a Will that was executed before marriage, that Will is still valid unless it was revoked or amended prior to the date of death. However, the law provides protections for surviving spouses by modifying the terms of the Will. If the testator marries after making a Will, the surviving spouse receives the share of the estate to which they would have been entitled had the testator died intestate, unless the Will shall give the surviving spouse a greater share or unless it appears from the Will that the Will was made in contemplation of marriage to the surviving spouse.
What to do if Your Spouse Passes Away
When your spouse passes away, depending on whether they have a Will or not, it’s possible for a legal dispute to arise, especially if your spouse had children to prior relationships. Depending on the circumstances, this can lead to lengthy court battles, so it’s essential to consider all legal avenues:
Determine if Your Spouse Has a Valid Will: For most couples, this will not be a problem. Many couples work together to have their estate plans prepared. However, as we mentioned above, this is not always the case.
Understanding the Will: If your spouse did have a Will, the first step for a surviving spouse is to examine the exact language of the Will. If the deceased did not revoke or update the will following the marriage, it might not accurately reflect the deceased’s intentions regarding the surviving spouse.
Understand How Your Surviving Spouse’s Assets are Titled: Your deceased spouse’s assets may pass to you regardless of whether they had a Will or not. Assets titled jointly or those that pass by virtue of a beneficiary form are going to pass regardless of what the Will says or the laws of intestate succession for decedent’s dying without a Will.
Filing for Elective Share: To claim an elective share, the surviving spouse must file a petition with the court, typically within six months of the deceased spouse's passing. It's critical to act quickly due to the time-sensitive nature of these claims.
Consulting an Attorney: Considering the overlapping complexity of estate law and family law, it is wise for surviving spouses to consult with an attorney experienced in these matters. An attorney can guide individuals through the process, help protect their rights, and devise a legal strategy tailored to their situation.
Other Considerations
It is worth noting that Wills, Living Trusts and beneficiary forms (for most accounts) can be updated or revoked at any time, and couples often choose to create new estate plans after marriage to better reflect their current circumstances and intentions. Therefore, it’s advisable for couples to review their estate plans regularly, especially after significant life events like marriage.
Navigating the death of a spouse is difficult enough without the added complexities of Wills, Living Trusts and estate matters. Surviving spouses in Pennsylvania should be aware of their rights, particularly when a Will was created before marriage. By understanding the options available and seeking appropriate legal counsel, surviving spouses can ensure they are protected and can honor their loved ones' legacy while navigating the journey ahead.
If you find yourself in this situation or want to learn more about your estate planning options, please feel free to reach out to Fiffik Law Group for a consultation. Our experienced estate planning and administration attorneys are here to support you through this challenging time.