The Short Answer

In Pennsylvania probate, an “elective share” claim is when a surviving spouse chooses to take a statutory share of the deceased spouse’s covered property (generally one-third), even if the will leaves them less (or nothing). Defending against it usually comes down to whether the spouse timely and properly filed the election, whether the spouse waived or forfeited the right, and what assets are actually included in the elective-share calculation.

What Pennsylvania Law Says

Pennsylvania gives a surviving spouse a statutory right to claim an elective share instead of accepting what the will provides. The elective share is generally one-third of certain property interests, and it can reach beyond the “probate estate” to include certain non-probate transfers described in the statute (for example, some survivorship or revocable-transfer arrangements), while excluding other categories (like many life insurance proceeds and certain retirement plans).

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 generally has a right to an elective share of one-third of specified categories of property, while also listing categories that are not subject to election.

Timing also matters. The election must be made in writing and filed with the Orphans’ Court within a specific window, or the right can be waived by inaction under 20 Pa.C.S. § 2210.

Why You Should Speak with an Attorney

While the statutes provide the general framework, elective share disputes often turn into fact-intensive litigation about deadlines, asset characterization, and whether the spouse’s right was lost or limited. Legal outcomes often depend on:

• Strict Deadlines: Under 20 Pa.C.S. § 2210, the election generally must be filed within six months after death or six months after probate (whichever is later), subject to limited court extension rules. If the filing is late or defective, that can be a powerful defense.
• Burden of Proof and Asset Tracing: A major fight is often what property is “subject to election” under 20 Pa.C.S. § 2203—especially where there are joint accounts, survivorship deeds, revocable arrangements, or significant lifetime transfers. Proving inclusion/exclusion can require subpoenas, valuations, and tracing funds.
• Exceptions, Waiver, and Forfeiture Issues: Defenses may involve whether the spouse previously waived rights in an agreement, whether the marriage/divorce status affects eligibility, or whether statutory forfeiture concepts apply. These issues can be decisive, but they are also easy to mishandle without Orphans’ Court experience.

If you are an executor, beneficiary, or family member facing an elective share claim, the risk is not just “paying the spouse.” It can also affect distributions to other heirs, trigger disputes over non-probate assets, and create personal liability concerns for fiduciaries if assets are distributed before the claim is resolved.

For additional background reading, you may find this helpful: Do I Need to Notify Social Security After My Spouse Dies in Pennsylvania?

Get Connected with a Pennsylvania Attorney

Do not leave your legal outcome to chance. We can connect you with a pre-screened Probate attorney in Pennsylvania to discuss your specific facts and options.

Find a Pennsylvania Attorney Now

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.