Spousal Election: Taking Against the Will

Pennsylvania law gives a surviving spouse the right to reject the provisions of the decedent's will and instead claim a one-third share of the property subject to the elective share (20 Pa.C.S. § 2203). This is one of the most consequential decisions in probate, and one of the most misunderstood.

The Basic Right: § 2203

In most cases the surviving spouse can elect to take one-third of certain property no matter what the will says. The right is not absolute. There is no right of election at all if the spouse forfeited it under 20 Pa.C.S. § 2208, which incorporates the forfeiture test of § 2106(a)(1): a spouse who for a year or more willfully neglected or refused to perform the duty to support the decedent, or who for a year or more willfully and maliciously deserted the decedent, forfeits the right. Section 2203 also does not apply if the decedent died during divorce proceedings, no divorce decree had been entered, and grounds for divorce had already been established (§ 2203(c)). The right can also be waived under § 2207, and it is deemed waived if the election is not filed on time (§ 2210(b)). Section 2203 reaches only a decedent domiciled in Pennsylvania; for a nonresident decedent, § 2202 applies the law of the decedent's domicile at death. Where none of those apply, a will that leaves the surviving spouse nothing (or $1) does not work the way the testator intended. The spouse can override it. The election is filed with the Clerk of the Orphans' Court , with a copy mailed to the personal representative or their attorney.

What "Property" Is Subject to the Election?

This is where most people (and some attorneys) get it wrong. The elective share is not one-third of the probate estate . Where the right of election exists, under § 2203(a) the surviving spouse is entitled to one-third of the following:

• Property passing by will or intestacy (§ 2203(a)(1))
• Retained-control conveyances: property conveyed during the marriage where the decedent retained the use of the property, an interest in its income, or a power to withdraw income; the spouse gets the income or use for the spouse's remaining life (§ 2203(a)(2))
• Revocable conveyances: property conveyed during the decedent's lifetime where the decedent retained the power to revoke, consume, invade, or dispose of the principal for his own benefit (§ 2203(a)(3))
• Joint survivorship property: property conveyed during the marriage to the decedent and another with right of survivorship, to the extent of any interest the decedent could unilaterally convey at death (§ 2203(a)(4))
• Annuity contracts: survivorship rights conveyed to an annuity beneficiary where the decedent purchased the annuity during the marriage and was receiving payments at death (§ 2203(a)(5))
• One-year conveyances: property conveyed during the marriage and within one year of death, to the extent the aggregate to each donee exceeds $3,000 (§ 2203(a)(6))

The statute exists to prevent a decedent from gifting, transferring, or retitling assets to defeat the spouse's election. The "not subject to election" exclusions are in § 2203(b) and include conveyances made with the surviving spouse's consent, life insurance proceeds payable to named beneficiaries, benefits under broad-based employer plans (pension, profit-sharing, etc.), and property passing by the exercise of a power of appointment granted by someone other than the decedent.

The Offset: § 2204: What the Spouse Must Give Up

A spouse who elects against the will does not get the elective share on top of what the will provides. Under § 2204(a), the election is itself deemed a disclaimer of the following, subject to the exceptions in § 2204(b) and (c):

• Any provision in the will in favor of the spouse
• The spouse's interest in property passing by intestacy
• Other beneficial interests the spouse would otherwise enjoy, including property in any trust the decedent created during his lifetime, insurance and annuity proceeds, employer-plan benefits, and entireties or survivorship property in the proportion that it represents the decedent's contributions (§ 2204(a))

Two exceptions matter. If the spouse has already accepted one of these interests, or it cannot be disclaimed for some other reason, § 2204(b) allows the elective share only if the spouse conveys or releases that interest to whoever would have taken it had she disclaimed. Under § 2204(c), the spouse may instead elect to retain any of these interests that she owns outright or in fee simple absolute immediately after the decedent's death, and have its date-of-death value charged against the elective share. The same charge applies automatically to any interest that cannot be disclaimed, conveyed, or released. Any award is also conditioned on the spouse delivering whatever disclaimers, releases, or conveyances the court finds appropriate (§ 2204(e)).

The election does not require the spouse to give up the family exemption ($3,500 under § 3121). That exemption is a separate statutory right that is not listed among the interests disclaimed under § 2204, so an electing spouse may still claim it.

This means the election is a trade : the spouse gives up what the will provides and takes one-third instead. The math only makes sense if one-third of the property subject to election is more than what the will leaves the spouse. In many estates, it is not, which is why the decision to elect requires careful analysis, not a reflexive filing.

When Does the Election Make Sense?

The spousal election is a strategic decision, not an emotional one. It typically makes sense when:

• The will leaves the spouse substantially less than one-third of the available property: common in blended family situations where the decedent left most assets to children from a prior marriage
• The decedent disinherited the spouse entirely , the election guarantees at least one-third
• The will creates a trust for the spouse's benefit that is too restrictive: income-only, no invasion rights, hostile trustee . One-third outright may be worth more than a lifetime interest in a controlled trust.

It typically does not make sense when:

• The will already provides more than one-third of the available property
• Most assets pass outside the probate estate (life insurance, retirement accounts, joint accounts) and are therefore not subject to the election
• The will creates a trust that provides more total value than one-third outright: consider the income stream over the spouse's life expectancy
• The election would trigger litigation with the decedent's children that costs more than the marginal benefit

Waiver of the Elective Share

The surviving spouse can waive the right to elect, wholly or partially, before or after marriage and before or after the decedent's death, under 20 Pa.C.S. § 2207 . A prenuptial agreement is one common vehicle for such a waiver and is subject to the enforceability standard of 23 Pa.C.S. § 3106, though that section governs premarital agreements only and is not itself the source of the waiver right. The waiver in a premarital agreement is presumed enforceable. Under 23 Pa.C.S. § 3106(a), the spouse attacking the agreement carries the burden of proof. That spouse must prove one of two things by clear and convincing evidence. The first is that the spouse did not execute the agreement voluntarily. The second is all three of the following: that no fair and reasonable disclosure of the other party's property or financial obligations was provided, that the spouse did not voluntarily and expressly waive the right to that disclosure in writing, and that the spouse did not have adequate knowledge of the other party's property or financial obligations. Because all three are required, a prenup with no schedule of assets can still be enforceable. Section 3106 applies to premarital agreements executed on or after its 2005 effective date. A prenup that says "each party waives all rights in the other's estate" (if properly executed) eliminates the elective share entirely.

This is the primary reason estate planning attorneys recommend prenuptial agreements for second marriages. Without one, the surviving spouse ordinarily retains the right to take one-third regardless of what the will says, and the children from the first marriage may receive substantially less than the decedent intended.

What Happens After the Election Is Filed?

Filing the election is the easy part. Mapping the § 2203 augmented estate, working through § 2204 disclaimers and charges, valuing the assets, reaching nonprobate transfers, and (if needed) enforcing in the orphans' court under § 2211 is a separate undertaking. For that procedural roadmap, see our companion article: After the Spousal Election Is Filed: The Enforcement Roadmap in Pennsylvania .

Legal and factual content on this page was last verified: Aug. 2026. If you are reading this significantly after that date, confirm key provisions with current statute text or contact our office.