Can a Surviving Spouse Claim a Life Estate or Elective Share in Pennsylvania Real Estate, and Does That Stop a Co-Owner’s Partition? | Pennsylvania Probate | FastCounsel
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Can a Surviving Spouse Claim a Life Estate or Elective Share in Pennsylvania Real Estate, and Does That Stop a Co-Owner’s Partition?

Can I elect a life estate in our real property as a surviving spouse, and how would that impact a potential partition action by my co-owner? - Pennsylvania

The Short Answer

In Pennsylvania, a surviving spouse generally has a statutory right to claim an elective share (typically one-third) of certain property interests connected to the decedent—but that is not the same thing as automatically “electing a life estate” in a specific piece of real estate. If you are co-owning real estate with someone else, a partition case may still be possible, and the outcome often depends on how title is held and what interest (if any) the Orphans’ Court awards to satisfy the spouse’s election.

Why You Should Speak with an Attorney

While the elective share statute provides the general rule, applying it to a specific house (especially where there is a co-owner who may want to force a sale) is rarely simple. Legal outcomes often depend on:

  • Strict Deadlines: The election must generally be filed within six months after death or six months after probate (whichever is later), or it can be treated as waived. See 20 Pa.C.S. § 2210.
  • Burden of Proof / Title Issues: Whether a co-owner can pursue partition (and what happens to occupancy during the case) can turn on how the deed is titled (e.g., tenants in common vs. survivorship) and what interest the decedent actually owned at death.
  • Exceptions and Court Allocation: Not all property is “subject to election,” and the Orphans’ Court can allocate the elective share across different assets rather than awarding a particular item of real estate. That allocation can directly affect whether a partition plaintiff is dealing with you as a fee co-owner, a life tenant-type interest, or a party with a claim that is better handled through the estate.

In other words: even if you have strong surviving-spouse rights, a co-owner may still attempt partition, and the best defense (or settlement posture) often depends on coordinating the probate/elective share strategy with the real estate litigation strategy. Trying to handle this alone can lead to missed deadlines, unintended waivers, or a forced sale that could have been avoided or negotiated differently.

If you want more background reading, see: elective share claims in Pennsylvania and partition actions for inherited property.

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Disclaimer: This article provides general information under Pennsylvania law and does not create an attorney-client relationship. Laws change frequently. For legal advice specific to your situation, please consult with a licensed attorney.

The information on this site is for general informational purposes only, may be outdated, and is not legal advice; do not rely on it without consulting your own attorney.