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Richard, Attorney
Category: Estate Law
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Experience:  29 years of experience practicing law, including tax and estate planning.
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Pennsylvania will: Family member created will in 1993. He

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Pennsylvania will: Family member created will in 1993. He was not married at the time and left his estate to his two children.

He remarried in 2005. We have not found a new will. Does the 1993 will control?

Thank you,

Deb L
Welcome! My goal is to do my very best to understand your situation and to provide a full and complete answer for you.

Good morning. The marriage would not invalidate the 1993 will, but the surviving spouse is entitled to an elective share under Pennsylvania law. Under Section 2203 of the 2010 Pennsylvania Code
Title 20 - DECEDENTS, ESTATES AND FIDUCIARIES, the surviving spouse is entitled to the following:

" § 2203. Right of election; resident decedent.
(a) Property subject to election.--Except as provided in
subsection (c), when a married person domiciled in this
Commonwealth dies, his surviving spouse has a right to an
elective share of one-third of the following property:
(1) Property passing from the decedent by will or
(2) Income or use for the remaining life of the spouse
of property conveyed by the decedent during the marriage to
the extent that the decedent at the time of his death had the
use of the property or an interest in or power to withdraw
the income thereof.
(3) Property conveyed by the decedent during his
lifetime to the extent that the decedent at the time of his
death had a power to revoke the conveyance or to consume,
invade or dispose of the principal for his own benefit.
(4) Property conveyed by the decedent during the
marriage to himself and another or others with right of
survivorship to the extent of any interest in the property
that the decedent had the power at the time of his death
unilaterally to convey absolutely or in fee.
(5) Survivorship rights conveyed to a beneficiary of an
annuity contract to the extent it was purchased by the
decedent during the marriage and the decedent was receiving
annuity payments therefrom at the time of his death.
(6) Property conveyed by the decedent during the
marriage and within one year of his death to the extent that
the aggregate amount so conveyed to each donee exceeds
$3,000, valued at the time of conveyance.
In construing this subsection, a power in the decedent to
withdraw income or principal, or a power in any person whose
interest is not adverse to the decedent to distribute to or use
for the benefit of the decedent any income or principal, shall
be deemed to be a power in the decedent to withdraw so much of
the income or principal as is subject to such power, even though
such income or principal may be distributed only for support or
other particular purpose or only in limited periodic amounts.
(b) Property not subject to election.--The provisions of
subsection (a) shall not be construed to include any of the
following except to the extent that they pass as part of the
decedent's estate to his personal representative, heirs,
legatees or devisees:
(1) Any conveyance made with the express consent or
joinder of the surviving spouse.
(2) The proceeds of insurance, including accidental
death benefits, on the life of the decedent.
(3) Interests under any broad-based nondiscriminatory
pension, profit sharing, stock bonus, deferred compensation,
disability, death benefit or other such plan established by
an employer for the benefit of its employees and their
(4) Property passing by the decedent's exercise or
nonexercise of any power of appointment given by someone
other than the decedent.
(c) Nonapplicability.--Pursuant to 23 Pa.C.S. § 3323(d.1)
(relating to decree of court), this section shall not apply in
the event a married person domiciled in this Commonwealth dies
during the course of divorce proceedings, no decree of divorce
has been entered pursuant to 23 Pa.C.S. § 3323 and grounds have
been established as provided in 23 Pa.C.S. § 3323(g)."

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Customer: replied 3 years ago.



What is confusing is that I am also looking at Section 2507(3) of the PA Code, which discusses modification of a will by circumstances, ie marriage. This section seems to say the new wife would be entitled to 1/2 of the estate?


Incidentally, the remaining "issue" of the decedent include both 2 biological children from his first marriage who inherited the whole estate under the 1993 will as well as step children of his second wife. It's a mess.



Thanks so much for replying. It is confusing no doubt. And, you are correct, that she could claim what she would be entitled had he died intestate. Since he had two children from a prior marriage, under the following intestate succession laws, she would be entitled to the following:

§ 2102. Share of surviving spouse.
The intestate share of a decedent's surviving spouse is:
(4) If there are surviving issue of the decedent one or
more of whom are not issue of the surviving spouse, one-half
of the intestate estate.

BUT, this means the "probate" estate. The following assets are not probate assets and do not pass under this provision: i) joint brokerage and bank accounts which vest automatically in the surviving owner upon the death of one owner; ii) real property held as joint tenants or tenants by the entirety, which also vest automatically in the surviving owner upon the death of one owner; and iii) assets with designated beneficiaries other than the estate such as life insurance and retirement accounts.
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