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What Does a Surviving Spouse Inherit?

The question of what a surviving spouse inherits from a deceased spouse is a complicated one. The answer is the typical lawyer's response, "It depends." Some scenarios can help to illustrate the issues. To keep the examples simple, I am going to assume that the husband dies before the wife - forgive me, all you husbands out there.

● Joint property. Any asset that is titled to a husband and wife jointly, joint with right of survivorship (JWROS), or as tenants by the entirety, passes to the wife at the moment of husband's death. It does not pass under the will and title vests in the surviving joint owner immediately.

● Beneficiary designations. Life insurance, qualified plans, IRAs, annuities, and other contract rights are paid to the beneficiary that was designated by the owner. For qualified retirement plans (but not IRAs) there are federal requirements that the beneficiary must be the surviving spouse unless the surviving spouse has consented in writing to the designation of another beneficiary.

● Property owned by the deceased husband alone. Any asset that is owned by the husband in his name alone, becomes part of his estate.

● Intestacy. If deceased husband had no will, then his estate passes by intestacy. The portion of the estate wife receives depends on whether or not the deceased husband leaves living issue or living parents. If the deceased husband leaves no living issue (issue are children, grandchildren, etc.) and also no living parent, then the wife receives his whole estate.

If deceased husband leaves no living issue, but leaves a living parent or parents, then the wife gets the first $30,000 plus one-half of the balance of the estate. The parents receive the balance.

If the deceased husband leaves living issue, all of whom are also issue of the wife (in other words, the surviving spouse is the mother by birth or adoption of all of the decedent's children), then the surviving spouse gets $30,000 plus one-half of the balance of the estate.

If there are surviving issue of husband, one or more of whom are not issue of the wife, then the wife receives one-half of the estate and the issue receive the balance.

● If deceased husband left a will, but the will either makes no provision for wife, or very little provision, or if husband has arranged title of assets so that there is no probate estate, the wife is entitled to elect a statutory forced share. (A spouse who for one year or more before the death of the deceased spouse has "willfully neglected or refused to perform the duty to support the other spouse," or who for one year or more has "willfully and maliciously deserted the other spouse" shall have no right of election, or even of receiving an intestate share.)

If wife makes this election, whether the marriage lasted for one day or fifty (50) years, the elective share is one-third (1/3) of: (1) the property that passes under the decedent's will (2) property from which the decedent was entitled to receive the income if that property was transferred by the decedent during the marriage, (3) property transferred by the decedent during life where the decedent could revoke the transfer and get the property back, or could withdraw or invade the principal of the property for the decedent's own benefit (for example, property in a revocable trust), (4) joint property owned with another to the extent the decedent could have conveyed or revoked the joint account, (5) annuity payments to the extent the annuity was purchased during the marriage and the decedent was receiving payments, and (6) gifts made within one year of death to the extent they exceed $3,000 per beneficiary.

The following property interests are not subject to the election: (a) any transfer made with the consent of the surviving spouse, (b) life insurance on the decedent's life, and (3) retirement plans (although many retirement plans other than IRA's must be paid to the surviving spouse unless the surviving spouse consented to a different beneficiary designation).

Note that a spouse cannot take both an intestate share and a statutory forced share. Care must be taken to determine which options are available to the surviving spouse and which option produces the best result.

● If the husband made a will before he married, then the surviving spouse will receive the share of the estate to which she would have been entitled if the husband had died without a will, unless the will gives her a larger share, or unless it appears from the will that it was made in contemplation of the marriage.

● If husband made a will and was later divorced, the law provides that any provision in that will for the benefit of former wife is ineffective. The former wife has no rights in husband's estate, either as a beneficiary or as an executor or administrator. The will is not revoked, it is interpreted as if the ex-wife had predeceased her ex-husband.

All of the scenarios described above state general principles of law in Pennsylvania. Spouses are free to make contracts with each other agreeing to different dispositions. If the spouses made a pre-nuptial agreement or a post-nuptial agreement, the terms of those agreements will prevail.

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