Can I elect a life estate in our real property as a surviving spouse, and how would that impact a potential partition action by my co-owner? - Pennsylvania
The Short Answer
In Pennsylvania, a surviving spouse generally has a statutory right to claim an elective share (typically one-third) of certain property interests connected to the decedent—but that is not the same thing as automatically “electing a life estate” in a specific piece of real estate. If you are co-owning real estate with someone else, a partition case may still be possible, and the outcome often depends on how title is held and what interest (if any) the Orphans’ Court awards to satisfy the spouse’s election.
What Pennsylvania Law Says
Pennsylvania’s elective share is designed to protect a surviving spouse from being disinherited. The election is a claim against the decedent’s estate (and certain non-probate transfers) for a statutory fraction, and the Orphans’ Court determines how the election is satisfied across the property subject to the election. Practically, that means you may end up with a monetary entitlement, a fractional interest, or another court-approved allocation—rather than a guaranteed life estate in the particular parcel you are living in.
The Statute
The primary law governing this issue is 20 Pa.C.S. § 2203.
This statute establishes that when a married Pennsylvania domiciliary dies, the surviving spouse has a right to an elective share of one-third of specified categories of property (including certain property passing by will/intestacy and certain transfers made during the marriage).
Why You Should Speak with an Attorney
While the elective share statute provides the general rule, applying it to a specific house (especially where there is a co-owner who may want to force a sale) is rarely simple. Legal outcomes often depend on:
- Strict Deadlines: The election must generally be filed within six months after death or six months after probate (whichever is later), or it can be treated as waived. See 20 Pa.C.S. § 2210.
- Burden of Proof / Title Issues: Whether a co-owner can pursue partition (and what happens to occupancy during the case) can turn on how the deed is titled (e.g., tenants in common vs. survivorship) and what interest the decedent actually owned at death.
- Exceptions and Court Allocation: Not all property is “subject to election,” and the Orphans’ Court can allocate the elective share across different assets rather than awarding a particular item of real estate. That allocation can directly affect whether a partition plaintiff is dealing with you as a fee co-owner, a life tenant-type interest, or a party with a claim that is better handled through the estate.
In other words: even if you have strong surviving-spouse rights, a co-owner may still attempt partition, and the best defense (or settlement posture) often depends on coordinating the probate/elective share strategy with the real estate litigation strategy. Trying to handle this alone can lead to missed deadlines, unintended waivers, or a forced sale that could have been avoided or negotiated differently.
If you want more background reading, see: elective share claims in Pennsylvania and partition actions for inherited property.
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Disclaimer: This article provides general information under Pennsylvania law and does not create an attorney-client relationship. Laws change frequently. For legal advice specific to your situation, please consult with a licensed attorney.