Spousal Elective Share in Pennsylvania: Can You Disinherit a Spouse?

You cannot fully disinherit a spouse in Pennsylvania. Under 20 Pa.C.S. § 2203, a surviving spouse who has been left out of a will — or given less than their statutory share — has the legal right to claim one-third of the estate, regardless of what the will says.

This "elective share" overrides the testator's wishes and exists to prevent a married person from leaving a surviving spouse with nothing.

How the Elective Share Works

A surviving spouse has the right to elect against the will and claim 33.3% of the "augmented estate." This is not just the probate estate. Pennsylvania calculates the elective share against a broad pool of assets:

Included in the calculation:

• All probate assets (property passing through the will)
• Revocable trusts where the decedent retained the power to revoke or consume principal
• Joint tenancies with right of survivorship created during marriage (with non-spouse co-owners)
• Large gifts made within one year of death

Excluded from the calculation:

• Life insurance proceeds paid to named beneficiaries
• Most qualified retirement plans (401(k), IRA) with designated beneficiaries
• Social Security survivor benefits

This broad calculation prevents the most common workaround — transferring assets to trusts or joint accounts to keep them away from the spouse. Pennsylvania law pulls those assets back in.

Filing Deadline

The surviving spouse must file a written election with the Clerk of the Orphans' Court within six months of:

• The date of death, OR
• The date the will is admitted to probate

Whichever is later. Miss this deadline, and the right is permanently waived. The filing is formal — an informal letter or verbal statement does not count.

The Omitted Spouse Rule

There is a separate, stronger protection for spouses who married after the will was executed. Under 20 Pa.C.S. § 2507, if you create a will and then get married without updating it, the new spouse is classified as an "omitted spouse."

An omitted spouse is not limited to the one-third elective share. Instead, they receive the full intestate share — what they would have inherited if you died without a will. In many cases, this is significantly more than one-third.

The omitted spouse protection applies unless:

• The will clearly shows the omission was intentional (not just silent — it must affirmatively indicate the testator contemplated the marriage)
• The spouse was provided for through alternative lifetime transfers that were intended to take the place of a will provision

What This Means for Estate Planning

If you want to provide for a spouse: The elective share is a floor, not a ceiling. Most estate plans give the surviving spouse more than one-third. The protection matters most in blended families, where a testator might unintentionally leave the second spouse with less than the statutory minimum while directing assets to children from a first marriage.

If you want to limit what a spouse receives: You cannot go below one-third. However, you can structure the plan so the one-third share comes from specific, strategic sources. For example:

• Use life insurance (excluded from the calculation) to provide for children
• Fund an irrevocable trust more than one year before death (outside the clawback window)
• Use retirement account beneficiary designations (excluded from the calculation) to direct assets to children

If you are getting remarried: Update your will before or immediately after the marriage. If you die with a pre-marriage will, your new spouse gets the full intestate share as an "omitted spouse" — potentially far more than you intended.

Practical Scenarios

Scenario 1: Blended family, will leaves everything to children. The surviving spouse elects against the will and claims one-third. The children receive the remaining two-thirds, split equally. If the children are from a prior relationship, the inheritance tax on their share is 4.5% as lineal descendants.

Scenario 2: Will leaves spouse 10% of the estate. The spouse can elect to take one-third instead, but they must choose: the 10% under the will OR the one-third elective share. They cannot take both.

Scenario 3: Testator creates will, then remarries without updating. The new spouse claims as an "omitted spouse" and receives the full intestate share. If there are children from a prior marriage, the intestate share for the spouse is exactly 50% of the estate (no $30,000 cushion when children are not shared).

Planning Around the Elective Share

The most effective tool is a prenuptial or postnuptial agreement. Pennsylvania courts will enforce a valid spousal agreement that waives the elective share, provided:

• Both parties had independent legal counsel (or knowingly waived it)
• Full financial disclosure was provided
• The agreement was entered into voluntarily

Without a valid spousal agreement, the one-third floor is absolute.

Getting the Structure Right

The Pennsylvania Basic Estate Planning Kit covers spousal elective share planning alongside the blended family protections, inheritance tax minimization strategies, and beneficiary designation coordination that make the difference between a plan that works and one that triggers a six-month Orphans' Court dispute.

See more Pennsylvania guides →