Spousal Elective Share Requirements in Pennsylvania

At a glance

Requirements one by one

Governing system and eligible spouse

Pennsylvania uses a state-specific one-third elective share under Chapter 22 of Title 20. Section 2203 applies when the married decedent was domiciled in Pennsylvania. For a nonresident decedent, § 2202 sends the elective-share question to the law of the decedent's domicile, subject to listed protections for people and property in Pennsylvania.

The spouse may act personally or through the agent route referenced in § 2206. A guardian or qualifying durable-power agent acting for a minor or incapacitated spouse needs an order from the court overseeing that spouse's estate and a finding that the election is advisable. Section 2208 removes the election if § 2106 would have barred the spouse from an intestate share. Section 2203(c) separately removes the election when its specified divorce-proceeding conditions are met.

Share amount and property base

The share is a flat one-third of the property § 2203 makes subject to election. There is no dollar floor and no marriage-duration schedule.

The six categories are precise. They cover property passing by will or intestacy; specified lifetime conveyances where the decedent retained income, use, revocation, consumption, or invasion rights; survivorship property the decedent could unilaterally convey; qualifying annuity survivorship rights; and transfers made during marriage and within one year before death above $3,000 per donee. The final-year category is valued when the property was conveyed, not at death.

Exclusions, credits, and disclaimers

Section 2203(b) excludes spouse-consented conveyances, life-insurance proceeds, qualifying broad-based nondiscriminatory employer plans, and property affected by a power of appointment granted by someone other than the decedent, unless the property passes through the decedent's estate. Section 2205 also excludes conveyances and contracts to the extent the decedent received adequate money-or- money's-worth consideration.

The election has a second side: § 2204 generally treats it as a disclaimer of listed benefits otherwise passing to the spouse. If an interest has already been accepted or cannot be disclaimed, the spouse ordinarily must convey or release it. The spouse may instead retain property owned outright immediately after death and charge its date-of-death value against the share. The court conditions an award on delivery of any required instruments and proof of compliance.

Deadline, filing, and court procedure

The deadline is the later of six months after death or six months after probate. An extension is available only on an application filed within that original period. Missing the manner or deadline is deemed a waiver, and Chapter 22 states no separate withdrawal procedure.

The election is a writing signed by the spouse and filed with the clerk of the Orphans' Court Division in the county where the decedent died domiciled. Notice must go to the personal representative, if any. The estate reimburses filing and recording costs as administration expenses. Section 2211 then gives the court power, after notice and hearing, to decide the election, the spouse's required disclaimers or releases, and the liabilities of other holders and recipients.

Waiver and premarital agreements

Section 2207 is unusually short and broad: waiver may be whole or partial, before or after marriage, and before or after the decedent's death. Chapter 22 does not state a writing, witness, acknowledgment, or consideration requirement for that waiver itself.

When the asserted waiver is part of a premarital agreement, § 3106 supplies the separate enforceability framework. The challenger bears a clear-and-convincing burden to prove involuntary execution or the specified combination of inadequate disclosure, no written disclosure waiver, and inadequate knowledge.

Payment sources and effect

Section 2211 applies property otherwise passing by intestacy first. It then charges the balance separately against each covered conveyance, treating a will as a conveyance. A possessory fiduciary, custodian, or obligor can face specific- act orders or personal liability, as can an original recipient or successive donee still holding the property or proceeds.

For a disclaimed interest contingent on the spouse's survival, other interests pass as though the spouse predeceased. The court may also require contribution to prevent a beneficiary from receiving a windfall caused by the election and the spouse's related disclaimers, releases, or conveyances.

What trips people up

• The filing deadline uses the later date. Probate may occur long after death, so calculate both six-month dates before deciding which controls.
• Life insurance and employer plans have a two-step treatment. They are generally excluded from the § 2203 base, but § 2204 can still make the election a disclaimer of spouse benefits from insurance or covered plans.
• The one-year gift rule has a fixed $3,000-per-donee threshold. The excess is valued at conveyance, unlike property that § 2204(c) charges at death value.
• The election is not simply a top-up. It can require disclaimers, releases, recordable conveyances, and proof before the award becomes effective.

Common questions

Can the spouse keep property already owned outright after death? Yes. Section 2204(c) allows the spouse to retain a listed beneficial interest owned outright or in fee simple immediately after death and charge its value against the share.

Can an extension request wait until after the deadline? No under § 2210(b). The application itself must be filed within the original later-of period.

Can the right be waived after the decedent dies? Section 2207 expressly says yes. Whether a particular document is effective can still depend on the law governing that document, including § 3106 for a premarital agreement.

Statutes and sources

• 20 Pa.C.S. §§ 2202–2203 — resident and nonresident systems, one-third share, included property, exclusions, and divorce-proceeding carveout. Official Title 20 PDF (accessed 2026-08-02).
• 20 Pa.C.S. §§ 2204–2205 — disclaimers, releases, credits, conditional decree, and adequate-consideration exclusion. Official Title 20 PDF (accessed 2026-08-02).
• 20 Pa.C.S. §§ 2206–2208 — personal and representative exercise, waiver, and forfeiture. Official Title 20 PDF (accessed 2026-08-02).
• 20 Pa.C.S. § 2210 — signed filing, notice, later-of deadline, extension, and costs. Official Title 20 PDF (accessed 2026-08-02).
• 20 Pa.C.S. § 2211 — hearing, satisfaction order, effect, contribution, and recipient liability. Official Title 20 PDF (accessed 2026-08-02).
• 23 Pa.C.S. § 3106 — premarital-agreement enforceability. Official Title 23 PDF (accessed 2026-08-02).