Pennsylvania Surviving Spouse Rights

By Oleg Kachko · Updated September 6, 2026

✓ Verified September 2026

Pennsylvania Surviving Spouse Rights exist because a will cannot cut a husband or wife out entirely. Every state protects a widow or widower with a share they may claim regardless of what the will says, plus allowances that come off the top before creditors and other heirs.

This guide gives the Pennsylvania answer in plain English: what the elective share is, the deadline to claim it, whether trusts and joint accounts count, the homestead, exempt-property and family allowances, what happens when the marriage came after the will, and what forfeits the rights. All facts are from Pennsylvania law, verified as of September 2026.

In This Pennsylvania Guide:

At a Glance
Why the Will Cannot Disinherit a Spouse
The Elective Share
Allowances
Married After the Will
Waiver and Disqualification
What to Expect
Official Sources

Pennsylvania Surviving Spouse Rights: At a Glance

Here are the Pennsylvania facts that decide most Pennsylvania surviving spouse rights claims:

Elective share	A surviving spouse of a decedent domiciled in Pennsylvania may elect to take one-third of the property listed in 20 Pa.C.S. § 2203(a), regardless of what the will says. The fraction is flat one-third — Pennsylvania uses no sliding scale based on length of marriage and is not a community property state. The election is against the will and against certain lifetime transfers, and the electing spouse takes that one-third in place of, not in addition to, what the will gave. Amounts a spouse may be able to claim depend on the estate’s makeup; check with the Orphans’ Court or a licensed Pennsylvania attorney.
Deadline to elect	Under 20 Pa.C.S. § 2210(b), the election must be filed with the clerk before the expiration of six months after the decedent’s death or six months after the date of probate of the will, whichever is later. The Orphans’ Court may extend that period on a petition by the surviving spouse filed with the clerk within the original time limit. Failure to file within the statutory period, as extended, is deemed a waiver of the right of election under § 2210(b).
Counts non-probate assets (augmented estate)	YES — Pennsylvania does not use the Uniform Probate Code “augmented estate” label, but 20 Pa.C.S. § 2203(a) reaches beyond the probate estate. The base includes property passing by will or intestacy; income or use of property conveyed during the marriage in which the decedent retained an interest; property over which the decedent retained a power to consume, invade, or revoke; survivorship interests in property held jointly with a right of survivorship created during the marriage; annuity survivorship rights where the annuity was bought during the marriage and the decedent was receiving payments at death; and property conveyed within one year of death to the extent the aggregate to any one donee exceeds 3000, valued at the time of conveyance. Section 2203(b) excludes transfers for adequate consideration, life insurance proceeds, retirement and pension plan proceeds, and transfers the spouse consented to in writing.
Community property state	NO — Pennsylvania is a common law (separate property) state, not a community property state. There is no automatic one-half community interest for the surviving spouse; the protection against disinheritance is the one-third elective share under 20 Pa.C.S. § 2203. A short-lived 1947 Pennsylvania community property act was struck down and has no effect on current 2026 law.
Homestead allowance	UNVERIFIED as a distinct “homestead allowance” — Pennsylvania has no UPC-style homestead allowance and no statutory life estate in the marital residence. The nearest equivalent is the family exemption under 20 Pa.C.S. § 3121, which the surviving spouse may claim in real property, including an interest in the family residence, up to a total value of 3500. Dower and curtesy were abolished by 20 Pa.C.S. § 2105, so no common law life estate in the home survives.
Exempt property	Pennsylvania does not have a separate exempt property allowance for household goods or a vehicle. The single allowance is the family exemption of 3500 under 20 Pa.C.S. § 3121, which the surviving spouse may retain or claim in either real or personal property, or both, not already sold by the personal representative. Property specifically devised or bequeathed may not be claimed if other assets are available. The exemption is a one-time claim, not per item.
Family allowance	UNVERIFIED as a recurring allowance — Pennsylvania provides no periodic family allowance during administration. The 3500 family exemption under 20 Pa.C.S. § 3121 is a single lump-sum claim rather than a monthly or yearly maintenance payment, and it has no duration limit tied to the length of administration. It is claimed in the account or by petition and set aside under 20 Pa.C.S. § 3123, and it has priority as a preferred claim against the estate under 20 Pa.C.S. § 3392.
Court / filing	The election is filed with the clerk of the Orphans’ Court Division of the Court of Common Pleas in the Pennsylvania county where the decedent’s estate is administered, under 20 Pa.C.S. § 2210(a). In most counties the Register of Wills also serves as the Clerk of the Orphans’ Court, so the filing is made at the county Register of Wills and Orphans’ Court office. Petitions to extend the election period are heard by that Orphans’ Court Division. — The filing is commonly called the “Election of Surviving Spouse to Take Against the Will,” authorized by 20 Pa.C.S. § 2210(a), which requires a writing signed by the surviving spouse and acknowledged before an officer authorized to take acknowledgments. Counties may title their form “Spousal Election” or “Election to Take Against the Will.” A spouse who wants to take under the will instead may file an election to take under the will; ask the county Register of Wills for the local form.

Why the Will Cannot Disinherit a Spouse in Pennsylvania

The law treats marriage as an economic partnership. A spouse who spent decades contributing to a household is not left to the mercy of a will written in anger, under pressure, or decades ago. In separate-property states the protection is the elective share: a fixed fraction of the estate the surviving spouse may take instead of whatever the will provides.

In community property states it is built in — half of everything acquired during the marriage already belongs to the survivor and never passes under the will at all. Pennsylvania uses one of those two systems, and the table above says which.

The right is personal to the spouse and must be claimed. Nothing happens automatically: a surviving spouse who does nothing takes what the will gives, even if that is nothing. The election has a deadline, it is filed in the probate court, and it is the single Pennsylvania surviving spouse rights fact that a grieving spouse most often learns too late.

The Pennsylvania Elective Share

A surviving spouse of a decedent domiciled in Pennsylvania may elect to take one-third of the property listed in 20 Pa.C.S. § 2203(a), regardless of what the will says. The fraction is flat one-third — Pennsylvania uses no sliding scale based on length of marriage and is not a community property state.

The election is against the will and against certain lifetime transfers, and the electing spouse takes that one-third in place of, not in addition to, what the will gave. Amounts a spouse may be able to claim depend on the estate’s makeup; check with the Orphans’ Court or a licensed Pennsylvania attorney.

The deadline: Under 20 Pa.C.S. § 2210(b), the election must be filed with the clerk before the expiration of six months after the decedent’s death or six months after the date of probate of the will, whichever is later. The Orphans’ Court may extend that period on a petition by the surviving spouse filed with the clerk within the original time limit.

Failure to file within the statutory period, as extended, is deemed a waiver of the right of election under § 2210(b).

What counts: YES — Pennsylvania does not use the Uniform Probate Code “augmented estate” label, but 20 Pa.C.S. § 2203(a) reaches beyond the probate estate.

The base includes property passing by will or intestacy; income or use of property conveyed during the marriage in which the decedent retained an interest; property over which the decedent retained a power to consume, invade, or revoke; survivorship interests in property held jointly with a right of survivorship created during the marriage;

annuity survivorship rights where the annuity was bought during the marriage and the decedent was receiving payments at death; and property conveyed within one year of death to the extent the aggregate to any one donee exceeds 3000, valued at the time of conveyance.

Section 2203(b) excludes transfers for adequate consideration, life insurance proceeds, retirement and pension plan proceeds, and transfers the spouse consented to in writing.

Community property: NO — Pennsylvania is a common law (separate property) state, not a community property state. There is no automatic one-half community interest for the surviving spouse; the protection against disinheritance is the one-third elective share under 20 Pa.C.S. § 2203. A short-lived 1947 Pennsylvania community property act was struck down and has no effect on current 2026 law.

Allowances the Spouse Gets on Top of the Will

Homestead: UNVERIFIED as a distinct “homestead allowance” — Pennsylvania has no UPC-style homestead allowance and no statutory life estate in the marital residence. The nearest equivalent is the family exemption under 20 Pa.C.S. § 3121, which the surviving spouse may claim in real property, including an interest in the family residence, up to a total value of 3500.

Dower and curtesy were abolished by 20 Pa.C.S. § 2105, so no common law life estate in the home survives.

Exempt property: Pennsylvania does not have a separate exempt property allowance for household goods or a vehicle. The single allowance is the family exemption of 3500 under 20 Pa.C.S. § 3121, which the surviving spouse may retain or claim in either real or personal property, or both, not already sold by the personal representative. Property specifically devised or bequeathed may not be claimed if other assets are available.

The exemption is a one-time claim, not per item.

Family allowance: UNVERIFIED as a recurring allowance — Pennsylvania provides no periodic family allowance during administration. The 3500 family exemption under 20 Pa.C.S. § 3121 is a single lump-sum claim rather than a monthly or yearly maintenance payment, and it has no duration limit tied to the length of administration.

It is claimed in the account or by petition and set aside under 20 Pa.C.S. § 3123, and it has priority as a preferred claim against the estate under 20 Pa.C.S. § 3392.

Married After the Will Was Signed

Under 20 Pa.C.S. § 2507(3), if the testator marries after making the will, the surviving spouse receives the share of the estate to which the spouse would have been entitled had the testator died intestate. That protection does not apply if the will gives the spouse a greater share, or if it appears from the will that the will was made in contemplation of marriage to that surviving spouse.

This is automatic and separate from the elective share, so an omitted spouse may be able to take the intestate share without filing an election.

Waiver and Disqualification in Pennsylvania

Under 20 Pa.C.S. § 2207, the right of election may be waived, wholly or partially, before or after marriage, and before or after the decedent’s death, by a written waiver signed by the waiving spouse.

Premarital agreements are governed by 23 Pa.C.S. § 3106; an agreement is enforceable unless the challenging party proves, by clear and convincing evidence, that it was not executed voluntarily, or that there was no fair and reasonable disclosure of the other party’s property and obligations, no written waiver of disclosure, and no adequate independent knowledge of them. Section 3106 does not require independent counsel.

The burden is on the party seeking to set the agreement aside.

What forfeits the rights: Under 20 Pa.C.S. § 2208, a spouse who would forfeit an intestate share under 20 Pa.C.S. § 2106 has no right of election. Section 2106(a) forfeits the spouse’s rights where, for one year or more before the death, the spouse willfully neglected or refused to perform the duty to support the other spouse, or willfully and maliciously deserted the other spouse.

Section 2106(a)(2) also forfeits rights where the decedent died domiciled in Pennsylvania during divorce proceedings, no divorce decree was entered under 23 Pa.C.S. § 3323, and grounds for divorce were established under 23 Pa.C.S. § 3323(g). A separation agreement waiving estate rights can bar the claim under § 2207.

If there is no will: With no will, 20 Pa.C.S. § 2102 gives the surviving spouse the entire intestate estate if the decedent left no surviving issue and no parent; the first 30000 plus one-half of the balance if there is no issue but a surviving parent, or if all surviving issue are also issue of the surviving spouse;

and one-half of the intestate estate if any surviving issue is not the surviving spouse’s.

The Pennsylvania dying-without-a-will guide linked below covers that in full.

Other Pennsylvania rules: Pennsylvania’s share is a flat one-third with no sliding scale by length of marriage. Dower and curtesy are abolished by 20 Pa.C.S. § 2105, and there is no statutory life estate in the marital home.

The right of election is personal to the spouse under 20 Pa.C.S. § 2206 and may be exercised only during the spouse’s lifetime; a guardian or agent may elect only with Orphans’ Court approval. Under 20 Pa.C.S. § 2202, the elective rights of the spouse of a decedent domiciled outside Pennsylvania are governed by the law of the decedent’s domicile.

Electing against the will is generally an election against the whole will under 20 Pa.C.S. § 2204, so a spouse may be able to keep only the elective one-third, not also the will’s gifts.

Mistakes That Cost a Surviving Spouse in Pennsylvania

The first mistake is waiting. The election to take the statutory share has a deadline that runs from death or from the will’s admission, and the probate court cannot extend it for a spouse who did not know. The second is assuming the will is the whole picture.

A spouse who was left “the house” may be entitled to considerably more under the Pennsylvania surviving spouse rights rules — and may also be entitled to allowances the will never mentions.

The third mistake is signing something in the first weeks. A release, a family settlement, or a disclaimer offered by another heir can waive rights the spouse did not know they had. The last is overlooking a prenuptial agreement.

If one exists, it may have waived the elective share — but only if it met the state’s requirements for disclosure and fairness at the time, which is a question a lawyer should answer before anyone relies on it.

What to Expect When You Claim Pennsylvania Surviving Spouse Rights

Claiming Pennsylvania surviving spouse rights is a filing inside the probate case, not a separate lawsuit. The surviving spouse files the election and any allowance requests with the court, the personal representative calculates the estate the share is measured against, and the court resolves any dispute over what counts.

Where the will already gives the spouse more than the statutory share, the election is unnecessary and most spouses do not file one.

Two things surprise people. The first is how much depends on the calendar — the election deadline is short in some states and runs whether or not the spouse knew. The second is that the allowances are separate from the share and are paid first, ahead of creditors, which is often what keeps a surviving spouse in the home during the months the estate takes to settle.

You don’t have to do this alone

If you are settling a loved one’s estate in Pennsylvania, your state’s probate court self-help center and free legal-aid offices can walk you through the process at no cost. For an active probate or a deadline, talk to a licensed probate attorney in your state.

Key Takeaways: Pennsylvania Surviving Spouse Rights

The will cannot disinherit you: Pennsylvania surviving spouse rights guarantee a share the spouse may claim no matter what the will says.
You must elect: Pennsylvania surviving spouse rights are not automatic; the statutory share is claimed by a filing in the probate court.
The deadline is short: the election that secures Pennsylvania surviving spouse rights runs from death or the will’s admission and cannot be extended for not knowing.
Allowances come first: the homestead, exempt-property, and family allowances under Pennsylvania surviving spouse rights are paid before creditors and heirs.
Trusts may count: in augmented-estate states, Pennsylvania surviving spouse rights reach assets placed in trusts and joint accounts, not only probate property.
Community property is different: where it applies, half is already the survivor’s, and Pennsylvania surviving spouse rights are about the other half.
A late marriage changes the will: a spouse married after the will was signed usually takes an intestate share under Pennsylvania surviving spouse rights.
Prenups can waive: Pennsylvania surviving spouse rights can be given up in a prenuptial or postnuptial agreement, but only one that met the state’s disclosure rules.
Separation can forfeit: a pending divorce or abandonment can end Pennsylvania surviving spouse rights in some states before the death.
Sign nothing early: a release or disclaimer offered by another heir can waive Pennsylvania surviving spouse rights the spouse never knew about.
Compare before you elect: Pennsylvania surviving spouse rights are worth claiming only when the statutory share exceeds what the will gives.
The intestate share is separate: when there is no will, Pennsylvania surviving spouse rights are set by the intestacy rules on the companion guide.

Quick Answers: Pennsylvania Surviving Spouse Rights

What are Pennsylvania Surviving Spouse Rights if the will leaves the spouse nothing?

A statutory share — commonly a third to a half of the estate — plus allowances paid ahead of creditors. Pennsylvania Surviving Spouse Rights exist precisely for this case, but they must be claimed by a filing.

How long does a spouse have to claim Pennsylvania Surviving Spouse Rights?

A fixed period after death or after the will is admitted, set by statute. Missing it forfeits the statutory share, which is the most common way Pennsylvania surviving spouse rights are lost.

Official Pennsylvania Sources & Resources

Pennsylvania Probate Court: https://www.pacourts.us/forms/for-the-public/orphans-court-forms
Pennsylvania Elective Share Statute: https://www.legis.state.pa.us/WU01/LI/LI/CT/HTM/20/00.022.003.000..HTM
Internal Revenue Service — Estate Tax: irs.gov
Cornell Legal Information Institute: law.cornell.edu/wex

This Pennsylvania guide was last verified against official sources in September 2026. Laws change — verify with your state court or a licensed attorney.

More Pennsylvania Estate Guides

Disclaimer: This guide is informational only and is not legal or tax advice. Estate, probate, and tax laws change and vary by state and county. Verify current rules and dollar figures with your state’s court, statute, or a licensed attorney or tax professional before acting. For urgent matters like an active probate or a tax deadline, consult a licensed professional in your state right away.

Estate planning? Make sure your life insurance is in order — see Life Insure Guide. Worried about Medicaid estate recovery? See Medicare Cover Guide. Divorced recently? Update your will and beneficiaries — see Divorce Help Guide.

Pennsylvania Surviving Spouse Rights — Elective Share, Allowances, and the Deadline to Claim Them (2026)