Legal Question in Wills and Trusts in Pennsylvania

Condolences on your loss.

Unless your father changed his will, the will controls, except that a surviving spouse has a claim against the estate if she is not given a share in the will. If you feel that the estate is not being fairly administered, consult and retain your own estates lawyer. Your father's estate should be going through administration in the county where he resided at the time of his death.

THIS RESPONSE IS NOT LEGAL ADVICE, SINCE I DO NOT HAVE ALL OF THE INFORMATION THAT WOULD BE REQUIRED, AND I DO NOT HAVE A REPRESENTATION AGREEMENT WITH YOU.

* If the answers to your question confirm that you have a valid issue or worthwhile claim, your next step should almost always be to establish a dialog with a lawyer who can provide specific advice to you. Contact a lawyer in your county or township.

* Another reason for contacting a lawyer is that it is often impossible to give a good answer in the Internet Q&A format without having more information. The unique circumstances of your situation and things that you may not have thought to mention in your question may completely change the answer. If you want to be sure that you have a complete answer to your question and an understanding of what that answer means, establish a connection with a lawyer who practices in the area of your concern.

I'm sorry for the loss of your father. In Pennsylvania, a surviving spouse who is cut out of a Will is entitled to an elective share of approximately 1/3 - not 50%. As for their separation, it is irrelevant. If divorce proceedings had commenced, that would be a different matter.

The rules are fairly complicated and can be found here: http://www.legis.state.pa.us/cfdocs/legis/LI/consCheck.cfm?txtType=HTM&ttl=20&div=0&chpt=22

I would recommend that you contact an attorney to assist you.

Kevin A. Pollock, J.D., LL.M.

www.PollockAtLaw.com

P: (609) 818-1555

Licensed to practice law in Florida, New Jersey, New York and Pennsylvania.

Also, visit my blog at:

http://WillsTrustsEstates.blogspot.com/

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I agree with my colleauges but add that it is possible for a surviving spouse to forfeit the right to an elective share. See 20 Pa.C.S.A. � 2106(a)(1) (providing that a spouse who, for one year or upwards previous to the death of the other spouse, has willfully neglected or refused to perform the duty to support the other spouse, or who for one year or upwards has willfully and maliciously deserted the other spouse, shall have no right or interest under this chapter in the real or personal estate of the other spouse.)

You indicate that the stepmother moved out but you do not indicate when or how long she was gone so it may be that she has forfeited her rights.

Otherwise, if there were no divorce proceedings, then she would be entitled to an elective share.

Attorney Pollock is right that the elective share (which is not the same as an intestate share) is 1/3rd of the estate. However, there are time limits for asserting the elective share. You indicate that your father died a year ago. The step-mother must assert her right to an elective share within 6 months of death or within 6 months of probate. See 20 Pa.C.S.A. � 2210 below:

(a) How election made.--A surviving spouse's election to take or not to take his elective share shall be by a writing signed by him and filed with the clerk of the orphans' court division of the county where the decedent died domiciled. Notice of the election shall be given to the decedent's personal representative, if any.

(b) Time limit.--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. The court may extend the time for election for such period and upon such terms and conditions as the court shall deem proper under the circumstances on application of the surviving spouse filed with the clerk within the foregoing time limit. Failure to file an election in the manner and within the time limit set forth in this section shall be deemed a waiver of the right of election.

Did the stepmother timely preserve her right to an elective share by filing her election? Was an estate probated for your father? When? When was the election made?

These are issues that the executor needs to discuss with the estate attorney.