August 2022 – 

The MLO Minute: “Time for a Disinherited Spouse to Elect Against a Will, and to Rescind an Election” –

By, Jessica Wilson, Esq. and Dennis McAndrews, Esq. –

Pennsylvania’s Probate, Estates and Fiduciaries Code (“PEF Code” or “the Code”) protects a surviving spouse against disinheritance from a deceased spouse’s will. Specifically, the Code establishes a surviving spouse’s “right of election,” which entitles the surviving spouse to the “elective share,” which is generally a one-third allotment of specific categories of the deceased spouse’s property. The Code states that 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. A question has arisen over the past few years whether the right of a spouse to rescind such an election must occur within this six-month timeframe. In 2020, Pennsylvania Superior Court excused the six-month time period for rescinding an election against the will of a deceased spouse where the surviving spouse did not have sufficient knowledge of the full assets of the decedent, but very recently the Pennsylvania Supreme Court reversed that decision and stated that an election against the will and any rescission of that election must occur within the six-month timeframe specified by the Code. In Re: Estate of Jabbour, filed, June 22, 2022.

Notably, the court emphasized that there are circumstances where the six-month time frame can be extended. First, if a surviving spouse believes that he/she cannot obtain adequate information regarding the full assets of the decedent, a petition for extension of time can be filed with the court, and the court can grant such an extension for good cause shown. Moreover, if the surviving spouse can establish that the election against the will was made under duress or pursuant to fraud, the time frame can be excused and extended.

With the increasing occurrence of second marriages later in life, the disinheritance of spouses has become more common. Oftentimes, there are understandable and agreed-upon reasons for such a disinheritance, which can include prenuptial agreements. However, surviving spouses are well advised to address any disinheritance with estate administration counsel as soon as reasonably possible after the deceased spouse has been laid to rest. Our estate administration professionals are well-versed in this issue, and provide comprehensive and compassionate estate administration services in all estate administration cases we handle. We welcome the opportunity to serve in both simple and complex estate administration matters.