Pennsylvania Elective Share and a Surviving Spouse: One Third, the Family Exemption and the Six Month Deadline

By Rozsa Gyene, California estate planning attorney, State Bar of California #208356. Published October 1, 2026. Last reviewed October 1, 2026.

Pennsylvania is a common law property state; a spouse's protection comes from the elective share in chapter 22 of Title 20, the family exemption in chapter 31 and the intestate share in chapter 21. This guide follows those sections, each read on the General Assembly's statutes site on October 1, 2026. It is general information, not advice about any particular family.

What the elective share reaches (section 2203(a))

Except where subsection (c) applies, when a married person domiciled in Pennsylvania dies, the surviving spouse has a right to an elective share of one third of the following property:

1. Property passing from the decedent by will or intestacy.
2. Income or use for the remaining life of the spouse of property conveyed by the decedent during the marriage, to the extent the decedent at death had the use of the property or an interest in or power to withdraw its income.
3. Property conveyed by the decedent during his lifetime, to the extent he had at death a power to revoke the conveyance or to consume, invade or dispose of the principal for his own benefit. A revocable living trust is a conveyance of this kind.
4. Property conveyed by the decedent during the marriage to himself and another or others with right of survivorship, to the extent of any interest he had the power at death to convey absolutely or in fee on his own.
5. Survivorship rights conveyed to a beneficiary of an annuity contract, to the extent the decedent bought it during the marriage and was receiving annuity payments at death.
6. Property conveyed by the decedent during the marriage and within one year of his death, to the extent the aggregate amount conveyed to each donee exceeds $3,000, valued at the time of the conveyance.

A conveyance for this purpose is any act intended to create an interest in real or personal property, whether it takes effect during life or at death (section 2201). A power in the decedent to withdraw income or principal, or in a non-adverse person to distribute to him, counts as a power to withdraw what is subject to it, even if limited to support or periodic amounts (section 2203(a), closing paragraph). The section does not apply when the decedent dies during divorce proceedings in which grounds have been established under 23 Pa.C.S. 3323(g) but no decree has been entered (section 2203(c)).

What is excluded (sections 2203(b) and 2205)

Subsection (a) does not include the following, except to the extent they pass as part of the decedent's estate to his personal representative, heirs, legatees or devisees: any conveyance made with the express consent or joinder of the surviving spouse; the proceeds of insurance, including accidental death benefits, on the decedent's life; interests under any broad-based nondiscriminatory pension, profit sharing, stock bonus, deferred compensation, disability, death benefit or similar plan established by an employer for its employees; and property passing by the decedent's exercise or nonexercise of a power of appointment given by someone else (section 2203(b)). Conveyances and contracts for which the decedent received adequate consideration in money or money's worth are also excluded (section 2205).

What the spouse gives up or has charged against the share (section 2204)

Electing is deemed a disclaimer of the spouse's own beneficial interests in the following, to the extent they would otherwise be payable to or enjoyed by the spouse after the death: property subject to the election that is not awarded as part of the share; property appointed by the decedent under a power of appointment; property in any trust the decedent created during his lifetime; life insurance proceeds attributable to premiums paid by the decedent, his employer, partner or creditor; annuity contracts bought by them; employer plans, other than social security and railroad retirement; community property in proportion to the decedent's contributions; property owned by the decedent and spouse by the entireties or jointly with right of survivorship, in proportion to the decedent's contributions; and property the decedent gave the spouse during life that the spouse still owns (section 2204(a)). An interest already accepted or that cannot be disclaimed must be conveyed or released, or the spouse may elect to keep an interest that is outright property and have its value at the date of death charged against the elective share (section 2204(b) and (c)). Any award is conditioned on the spouse delivering the disclaimers, releases or conveyances, in recordable form for real estate, and filing proof of compliance (section 2204(e)).

Who may elect, waiver and forfeiture (sections 2206 to 2208)

The right of election may be exercised, in whole or in part, only during the surviving spouse's lifetime, by the spouse or by an agent under a power of attorney as section 5603(d) provides; for a minor or incapacitated spouse, only by the guardian, or the agent under a durable power, on order of the court having jurisdiction of that spouse's estate (section 2206). The right may be waived, wholly or partially, before or after marriage and before or after the death (section 2207). A spouse who would be barred from an intestate share by forfeiture under section 2106 has no right of election (section 2208).

How and when to elect (section 2210)

The election to take or not to take the elective share is made by a writing signed by the surviving spouse and filed with the clerk of the orphans' court division of the county where the decedent died domiciled, with notice to the personal representative, if any (section 2210(a)). The election must be filed with the clerk before the expiration of six months after the decedent's death or before the expiration of six months after the date of probate, whichever is later. The court may extend the time, on such terms as it considers proper, on an application by the spouse filed with the clerk within that period. Failure to file an election in the manner and within the time set is deemed a waiver of the right (section 2210(b)). The costs of filing and recording the election are reimbursed from the estate as administration expenses (section 2210(c)). After notice and hearing, the orphans' court division of the county of domicile determines all matters concerning the election, applying property that would pass by intestacy first and then charging the balance against each conveyance subject to the election; it may restrain transfers of property that may be subject to the election, and its orders may be enforced against fiduciaries holding the property and against the recipients of it (section 2211).

The family exemption of $3,500 (section 3121)

The spouse of any decedent dying domiciled in Pennsylvania, and if there is no spouse or the spouse has forfeited the right, the children who were members of the decedent's household, and if none the parents in the household, may retain or claim as an exemption either real or personal property, or both, not already sold by the personal representative, to the value of $3,500; property specifically devised, bequeathed or otherwise disposed of by the decedent may not be claimed if other assets are available (section 3121). The personal representative delivers the items claimed at the values fixed by the inventory and appraisement (section 3122(a)). When the exemption is claimed from real estate, two court-appointed appraisers value it, the court may set the real estate apart to the spouse, and a certified copy of the decree is recorded with the recorder of deeds (section 3123). When the estate cannot pay all charges, the family exemption is paid second, immediately after the costs of administration (section 3392). The exemption is in addition to whatever the spouse takes under the will, by intestacy or by election.

The intestate share (section 2102)

Any part of an estate not effectively disposed of by will or otherwise passes to the heirs under chapter 21 (section 2101). The intestate share of a surviving spouse is: the entire intestate estate if the decedent left no surviving issue or parent; the first $30,000 plus one half of the balance if the decedent left no issue but is survived by a parent or parents; the first $30,000 plus one half of the balance if the decedent left issue all of whom are also issue of the surviving spouse; and one half of the intestate estate if any of the decedent's surviving issue are not issue of the surviving spouse. In a partial intestacy, property the spouse receives under the will counts toward the $30,000 allowance (section 2102). The rest passes to the decedent's issue, then parents, then the issue of parents, grandparents, and uncles and aunts and their children and grandchildren, and finally to an endowed community fund or the Commonwealth (section 2103, as amended by Act 50 of 2025). An heir who fails to survive the decedent by five days is treated as having died first (section 2104(10)), and when an estate passes to a husband and wife they take as tenants by the entireties (section 2104(7)).

Other rules that favor the spouse

A spouse married after the will was made receives the intestate share unless the will gives more or was made in contemplation of the marriage, while provisions for a spouse become ineffective on divorce or on death during divorce proceedings after grounds are established, unless the will says otherwise (section 2507(2) and (3)). The surviving spouse stands second, after the residuary legatees, in the order for letters of administration (section 3155(b)(2)), and first in the order of preference for payments without letters of wages up to $10,000 and deposits up to $20,000 under section 3101(a) and (b). Property passing to a husband or wife of a decedent dying on or after January 1, 1995 is taxed at zero percent under section 2116(a)(1.1) of the Tax Reform Code, and where property passes to a husband and wife with right of survivorship the lower rate applies to the whole interest (section 2116(a)(3)).

What a living trust changes

A revocable living trust does not reduce the elective share: property the decedent could revoke at death is expressly within section 2203(a)(3), and electing is a disclaimer of the spouse's interests in any trust the decedent created during life (section 2204(a)(3)). What a trust does is let a couple arrange who receives what, in a document both can sign, so that no election is needed; a spouse who agrees with the plan may also waive the right of election before or after the marriage (section 2207). See the Pennsylvania living trust page for what the joint plan includes.

2026 session law check

On October 1, 2026 the amendment histories under sections 2102, 2103, 2203, 2204, 2210, 2211 and 3121 were read on the General Assembly's statute pages; the latest acts shown are Act 50 of 2025 under section 2103, Act 175 of 2004 under section 2203, Act 152 of 1992 under section 2204, Act 26 of 1982 under section 2210, Act 102 of 1994 under section 3121 and Act 26 of 2003 under section 2102. Of the 51 acts on general legislation that the General Assembly's 2026 acts page lists, none is titled as amending Title 20, and its table of statutes affected by 2026 laws states that there is no chronological history for the year.