Surviving Spouses and the Elective Share
By Attorney Megan D. Strait
For centuries our laws have protected a surviving spouse from being completely disinherited by his or her deceased spouse. Pennsylvania was one of the earlier states to adopt legislation that provided for a statutorily determined share of the deceased spouse’s estate for his or her surviving spouse. This concept of a surviving spouse being able to choose to take the portion of the deceased spouse’s estate that the law says the surviving spouse is entitled to, is known as the elective share. In Pennsylvania, the law states that a surviving spouse is entitled to 1/3 of the deceased spouse’s estate. However, the law also states that the surviving spouse has a time limit on how long he or she has to make the election.
In Pennsylvania, a surviving spouse must decide whether to take or not take his or her elective share within six months after the deceased spouse’s death or within six months after the date of probate, whichever is later. While the statute permits the court to extend that time upon terms that the court deems proper, it is the responsibility of the surviving spouse to file the request for such extension within the six-month period. The failure of a surviving spouse to either make the election or request an extension will be considered a waiver of the right to the election. This time constraint also applies to the revocation of an election as the Pennsylvania Supreme Court has determined.
In the case of In re: Estate of Caleem L. Jabbour, the surviving spouse of Caleem Jabbour timely made her election to take against the will (choosing her 1/3), but several years later, she petitioned to revoke her election in an attempt to claim the share that was provided for her in Caleem’s will. The trial court granted the surviving spouse’s petition, and allowed the revocation, finding that the surviving spouse had initially filed the election because she felt she did not have sufficient information about her husband’s assets before having to make her decision on whether to take her elective share, and that her choice to take against the will was made out of an abundance of caution. Moreover, the trial court determined that after she gained full knowledge of her husband’s estate, she was then entitled to revoke her election, regardless of whether the statutory time limit had expired. The Superior Court agreed; however, the Supreme Court determined that she was not permitted to revoke her election as she had done so outside of the six-month time limit.
The Supreme Court reasoned that it would go against the basic principles of the law to permit a surviving spouse from being able to revoke his or her election outside of the statutory period based upon a lack of knowledge alone. It would open the door to surviving spouses taking elective shares as a precautionary measure until they can determine the contents of the deceased spouse’s estate. The Court stated that this was not the legislature’s intent, but rather, the intent in creating a statutory time limit was to create certainty and finality of an estate. The Court went on to say that the statute allows a surviving spouse to request an extension of time to make an election, and in the Jabbour case, that is what the surviving spouse should have done rather than making an election and then later attempting to revoke it based upon the fact that she wasn’t confident that she knew the contents of her deceased husband’s estate. This isn’t to say that she couldn’t have revoked her earlier decision, but rather if a choice is made, and a surviving spouse wants to later revoke that choice, it must be done within the six-month time limit that the statute carves out. If you have questions about your rights as a surviving spouse, the attorneys at Walters & Galloway are here to help.
