Pennsylvania Trusts and Estates Blog

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.

A person who dies without a will dies intestate. Each state has a statute that specifies to whom the decedent's property is distributed if there is no will.

You can check out who would receive your property if you die without a will at Intestacy Calculators TM. This site and the calculators it contains were created by Pennsylvania estate planning attorney Kurt R. Nilson, Esq.

The intestacy statute applies to probate property, that is, property in the decedent's name alone. Joint property passes to the surviving joint owner at the moment of death. Life insurance, retirement plans, and other assets that have a beneficiary designation pass to the named beneficiary. The will, if there is one, or the intestacy statute if there is no will, operates on the property that was in the decedent's name alone.

Thank you to Kurt R. Nilson for putting together such a useful tool.

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Here are some other ideas for disposing of the body.

And how could I forget?  There's always alkaline hydrolysis.

In addition to grief, loss, and loneliness, widows and widowers are faced with many practical problems. There are arrangements to be made, financial matters to deal with, and children to care for, just to name a few. The death of a spouse is a time when the surviving spouse will need love and support. The survivor also will be bombarded with advice, suggestions, demands, fears, and concerns. Here is a guide to help you through this difficult time.

1.    Take your time. Get through the funeral and the initial period of mourning before you tackle the paperwork. Usually there is nothing that needs immediate attention. This may not be true if these is a business that needs attention or a transaction about to close.

2.    Keep a record of everything you spend in connection with the estate. These items may be tax deductible and you are probably entitled to reimbursement from the estate.

3.    Cancel services and memberships, like cell phones, gym memberships, credit cards.

4.    Postpone making any changes in your life. Many counselors recommend not selling your house for one year. Give yourself time. Don't do anything suddenly. If at all possible, do not rush into a decision you might later regret.

5.    Don't start giving things away. Until you know what your legal rights and responsibilities are and what your spouse's will and other estate planning documents require, don't give away or destroy any personal possessions or any other belongings of your deceased spouse.

6.    Don't let anyone drive your deceased spouse's car. If it is not in your name, avoid driving it yourself until you get the title changed. Make sure it is properly insured.

7.    Collect the documents needed to settle your spouse's estate and locate assets - bank statements, current tax information, insurance policies, investment records, property deeds, and the will. To locate these documents check your safe deposit box, personal files, and contact your attorney, accountant, and other advisors.

8.    Determine what liabilities were owed by your spouse, for example, mortgages, loans, credit card balances, outstanding bills for medical treatment not covered by insurance,

9.    Before closing any accounts, withdrawing any sums, changing how accounts are titled, and collecting benefits - consult an estate attorney. There may be important tax reasons not to take possession of assets. For example, a disclaimer may be an appropriate tax planning technique for you. Disclaimers are not available for stock if the dividend check gets cashed or deposited. Don't deposit or cash any checks in the decedent's name until after you have consulted an estate attorney.

10.    Find out what benefits are available to you as a surviving spouse from pensions, social security, and veteran's benefits. Find out what life insurance death benefits you are entitled to and check for other insurance. Sometimes there is life insurance to pay off mortgages and credit cards through these lenders.

11.    Figure out a monthly budget showing your income and your expenses. At first, be cautious about spending. Don't make big purchases or charitable contributions until you are sure of where you stand financially. Wait until you have settled your spouse's estate and paid all the fees. The worst thing would be realizing you did not have the money to be so generous.

12.    Family and friends are great for giving you emotional support, but don't take your legal and financial advice from them.

13.    Don't let your sentimentalism guide your financial decisions. Don't feel you have to stick with the same investments, or the same insurer, or the same advisors because they were chosen by your deceased spouse. Advice given years ago may no longer be prudent or applicable.

14.    Be on you guard for people trying to take advantage of you. If someone comes into your life and shows an uncommon interest in your financial affairs, be cautious and keep that information to yourself.

15.    Consult professionals for financial and legal advice. You need to get help and advice to deal with probate, death taxes, income taxes, and property title issues. If you are put under pressure or arguments begin - refer these people to your lawyer. Don't try to field these kinds of questions and challenges yourself.

16.    Review your own estate plan. Who will get your assets when you die? Who is your executor? Who is your agent under a power of attorney? Who is your surrogate under medial directive and living will? Choose people for these positions who are competent and willing to do the job - do not choose someone because of their status or to honor them.

17.    Be patient. Finally settling an estate takes at least one year.

 Where do you keep your original will? Some folks keep their wills in a "fireproof" box in their desk, or under their bed. At your peril, I say. The metal box may not burn but it makes a fine little oven.

Some folks let the lawyer who wrote the will hold it in "safekeeping" for them. This is usually a service provided by law firms at no charge. The practice of lawyers varies. Some hold it in a safe deposit box in the name of the firm. Some keep wills in "fireproof" cabinets or in safes at their offices. Generally speaking, lawyers like to hold wills because that means the heirs have to come to that lawyer to retrieve the original will; that lawyer gets first crack at being retained to settle the estate.

Why not put your original will in safe deposit box at the bank? I often recommend that wills be put in the client's safe deposit box. "But," you cry, "the safe deposit box is sealed when I die." That is simply not true. Your family will always be able to get your will out of the box.

There are some restrictions on entry into a safe deposit box in the decedent's name. The purpose of the restrictions is to prevent inheritance tax evasion. If unreported cash or other valuables are stored in the box, the State wants to make sure that these items are reported and that inheritance tax is paid on them. Nevertheless, banks recognize the right of the family, next of kin or executor (if known), to search the contents of a decedent's safe deposit box for wills, codicils, trusts, life insurance policies, and cemetery deeds. If the key cannot be found, the box can be drilled. The law permits removal of such documents provided a bank employee certifies that no other assets have been removed. It is worth noting that the bank is entitled to demand that wills or other documents remain in their custody until lodged with the Register of Wills, though they seldom insist on this.

The restrictions on entry apply to a safe deposit box "in the decedent's name." A safe deposit box is considered to be "in the decedent's name" if it is registered in the decedent's name alone, if it is registered jointly in name of decedent and one or more others (except husband and wife), or registered in a partnership or trade name where decedent had access to the box, a principal agent or deputy. "In the decedent's name" is a term defined in the Pennsylvania state statute. It seems odd but a box in the joint names of the decedent and a spouse is not "in the decedent's name," while a joint box in the names of the decedent and any other person is "in the decedent's name."

None of the restrictions on access are applicable to boxes registered in the name of decedent and spouse. In that case, decedent's surviving spouse may enter the box and remove anything with no restriction whatsoever.

After the swearing in of an executor, it is the executor's responsibility to enter the box to collect assets. The executor must arrange either for the presence of a bank employee or a Commonwealth representative at the time of entry. It is the duty of the bank employee or Commonwealth representative to list the contents of the box or to certify that only the will or cemetery deed has been removed.

If the safe deposit box was rented jointly by decedent and another surviving party, the right of entry is probably limited to surviving joint owner although the restrictions about inventory still apply, even to this joint owner.

Subsequent entries by the executor or surviving joint owner are free of restriction.

Inventorying the safe deposit box is always part of the estate settlement process. Complying with the requirement about attendance of a bank employee or Commonwealth representative is not difficult. Since the safe deposit box is probably the "safest" place, please consider keeping your will and other valuable papers there. Although this discussion may suggest a complicated procedure to lay persons, in actuality, bank personnel are accustomed to handling this in the ordinary course of their business.