Spouse "entitled" amt. - PA

[Bethy]

What is the name of your state (only U.S. law)? PA

Hubby and I married over a year ago - second for both. We both have grown kids. We are both "house poor" No pre-nup (I know, STOOOOOPID). We each have our own home (his is still not ready to put on the market - needs TLC and he is still "attached" to it emotionally) but live in mine.

I made out a new will 3 months after we married to state that hubby can live in the house for 1 year after I die, but then house is to be sold and split between my 2 (adult) children. The lawyer who drew up the will said that my hubby could still file for 1/2 "entitlement" of the property (mine is paid off, his isn't) if I die as we are married. Hubby never had a will.

I spoke w/ another lawyer about this as I don't want to put the kids in "tenants in common" on the deed as they are still young (22/20) and 1 has money problems....however, she said hubby would be "entitled" to 1/3 of the property.

Yet ANOTHER lawyer said hubby would only be entited to a percentage of difference of what the house was worth when we marry and the time I die (if it was worth 300k when we married and 350k when I die, he'd be entitled to percentage of 50k)

Can anybody tell me the real scoop? Hubby refuses to sign a relinquishing rights to anything and w/ other recent 'revelations" I'm trying to save when I can for the kids.

thanks

 

[curb1]

You have a mess that is not uncommon when people get married, each with families, and no estate planning. This is confirmed by the answers from your different attorneys. You will probably be splitting the house between your new husband and your children if you die first. Then, his children very likely will end up being co-owners of the house with your children when he dies. Then it will be their problem.

 

[anteater]

According to PA Title 20:

§ 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 intestacy.

(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 beneficiaries.

(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).