This article examines what assets of a decedent’s property are subject to exemption, election, and the parties entitled thereto.
The Family Exemption
The family exemption is a statutory right founded upon the family relationship between the claimant and the decedent. Initially, the surviving spouse holds the right to the entire exemption. If there is no spouse or if the spouse forfeits the right, then children of the same household as the decedent may claim the exemption. Parents of the decedent may also make a claim when no spouse or children exist. $3,500 is the entire amount of the exemption and can be satisfied either by retaining or claiming real or personal property. Pennsylvania law does not distinguish between minor, adult, natural and adopted children. However, stepchildren are not entitled to the exemption.
Administration Expenses and Surviving Spouse (Elective Share)
Administration expenses are the only expenses given priority over the exemption. However, though liberally construed in favor those entitled to it, the exemption is subject to specific property interests established prior to the date of death. Therefore, the only questions to answer prior to claiming the exemption include: (1) what are the administration expenses; and (2) are there any property interests that were established prior to the date of death? After answering these two questions, the person(s) entitled can decide whether or not the claim the $3,500 exemption. Failing to demand the exemption within a reasonable time operates as a forfeiture or waiver of the right, among other things such as, but not limited to, agreement of the parties, desertion, divorce, adultery, and remarriage.
Surviving Spouse (Elective Share)
Additionally, surviving spouses have a right to claim an elective share in certain property. It is strongly advised that the surviving spouse be advised of his or her elective rights as soon as possible. The elective share is a claim against one-third of certain property, which claim must be asserted within six months of the decedent's death or probate. Assets subject to election include, but are not limited to, probate property, property in excess of $3,000 conveyed during marriage without adequate consideration and within one year of death, and property conveyed during marriage wherein the decedent retained certain interests. There is also a variety of assets which are not subject to election. The surviving spouse must make the election in a signed writing which must then be filed with the court and notice must be given to the personal representative handling the administration of the estate. Absent evidence of fraud, the election is time barred after six months.
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