Pennsylvania Supreme Court: Surviving Spouse Must Revoke Elective Share Election Within Six-Month Statutory Period
In In Re Estate of Jabbour, a June 22, 2022 opinion from the Pennsylvania Supreme Court, the Court addressed whether a surviving spouse who seeks to revoke a statutory election against the will (to take an elective share) must do so within the six-month period specified in the statute to file the election. The answer: yes. The widow here was not permitted to revoke her election after the expiration of the six-month time limit to file an election to take an elective share under Pennsylvania law.
The Facts of In Re Estate of Jabbour
Caleem and Arlene Jabbour married in 1995. Each had three children from prior marriages. Caleem and Arlene executed a joint and mutual will in 1998. Arlene was named as the sole heir of the residue of Caleem’s probate estate (and vice-versa).
Caleem died on December 22, 2014. The will was admitted to probate and Caleem’s daughter, Maura, and Arlene’s daughter, Terri, were appointed as co-executrixes. Caleem died with numerous bank accounts, some of which were probate assets, and some which were not. See the Probate v. Non-Probate Assets Chart.
On July 18, 2015, Arlene filed an election to take against Caleem’s will.
Four years later, Arlene filed a petition in the Pennsylvania court to revoke her spousal election to take an elective share against the will and sought to reclaim her testamentary share of Caleem’s estate. Caleem’s daughter Maura argued that Arlene’s revocation was untimely. Arlene claimed that she filed the election because she was unaware of the full extent and value of Caleem’s nonprobate assets. She sought revocation once she acquired a “sufficient understanding” as to the comparative values of Caleem’s probate and nonprobate assets.
On July 24, 2019, the court entered an order granting Arlene’s revocation petition. The court found that Arlene filed the election “out of an abundance of caution because she did not have sufficient information about [Caleem’s] nonprobate assets, as her [h]usband was very secretive about his finances.” Moreover, she was “entitled to revoke the [e]lection, now that she has full knowledge of the extent of [her husband’s] estate.” Maura appealed.
In a unanimous opinion, the Superior Court affirmed.
The Pennsylvania Supreme Court granted review to consider the following question:
Should the decedent’s spouse have been permitted to revoke her spousal election against the will when she did not allege or demonstrate active fraud, when she acted with willful blindness and did not exercise due diligence in revoking her election, and when her petition was filed more than three (3) years after the deadline imposed by this Court in Daub’s Estate?
Elective Share Rights In Pennsylvania
Unlike a testate share, which by definition only accounts for property passing under a will, the elective share under Section 2203 includes certain nonprobate assets. Section 2203 includes those assets in the elective share in order to prevent one spouse from depriving the other of what the legislature has determined to be a reasonable share by, for example, naming one’s spouse as the sole testate beneficiary while placing all of one’s assets in accounts that transfer upon death to a beneficiary other than the surviving spouse.
For a more in-depth analysis, read Surviving Spouse Right To an Elective Share In Pennsylvania Probate and Surviving Spouse Rights Pennsylvania.
What Is The Deadline To File For Elective Share In Pennsylvania?
Six months. The surviving spouse election to take an elective share 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. See 20 Pa. C.S. § 2210(b). See other Deadlines and Timelines In Pennsylvania Probate.
Can a Surviving Spouse Revoke An Election to Take Elective Share?
Yes. The issue in this case was when is the deadline under Pennsylvania law to revoke the election to take elective share – does the revocation have to be within the six month time limitation, or can it be later?
One decision critical to the Pennsylvania Supreme Court’s analysis in this case was Daub’s Estate, where the Court was asked to decide whether a surviving spouse could revoke an election to take under the will after the statutory period to elect had expired:
The widow in Daub’s Estate elected to take under the will of her deceased husband on February 23, 1923, about two months after his death. This election was timely under the governing statute, which provided “that a widow must make her election in writing within two years after the issuance of letters testamentary.” Daub’s Est., 157 A. at 910 (citing Act of June 7, 1917, P.L. 403, 410). For approximately the next six years, the widow received regular income from the estate pursuant to the terms of the will. However, on January 31, 1929, she filed a “petition asking [for] a decree vacating her existing election, and for leave to make a new election to take against the will.” Id.
The widow alleged that “she had been told by the executor that the value of the estate was $210,000,” but she learned after the executor died that the estate was worth more. Id. In explaining why she had waited so long to question the executor’s valuation, she claimed that, “because of the close relations between them, she did not seek legal advice until after [the executor] died.” Id. The orphans’ court granted the petition, holding that the executor’s failure to provide the widow with certain information about the estate was “a constructive fraud on her, and laches should not be attributed to her in not filing a petition within the time usually required.” Id. On appeal, the widow urged this Court to affirm the orphans’ court because she did not discover the estate’s true value until more than five years after her election.
We reversed, disagreeing that the untimely filing was excusable. We explained that: [a]s far back as 1863, when, under the then-existing laws, there was no time requirement within which a widow must elect to take against her husband’s will or be presumed to consent to take under it, and where there was no formal election, and none was required, we said in Bradford v. Kent that we knew of “no case in which it has been held that a lapse of time of more than five years after acts done, which are usually treated as indicating an election, will not be binding upon a widow, and prevent her denial of an election, though the acts were done in ignorance of her rights.” This was cited with approval in Boileau’s Estate, and, so far as we are aware, has never been qualified. Id. (citations modified).
We also declined to “qualify our oft-repeated decisions that a widow is entitled to full information regarding her deceased husband’s estate before she can be called upon to make her election,” but held that the principle was inapplicable. Id. Unlike Bradford and the other decisions of its era, Daub’s Estate involved “a formal election [and] a statutory time within which it was required to be made.” Id. The Daub Court observed that, in prescribing a limitations period, the General Assembly intended “to promote certainty in the settlement of estates.” Id. at 911 (quoting In re Baily’s Est., 132 A. 343, 344 (Pa. 1926)).
Consistently with that intent, we held that “ordinarily a petition to revoke an election must be presented within the statutory period after letters testamentary have been issued, or it will be deemed too late.” Id. “In view of the positive provisions of the statute” the Court was “not persuaded that relief could be granted ex gratia.” Id. A contrary conclusion would undermine the legislative goal to finalize the surviving spouse’s share within the prescribed statutory period.
The Court did, however, recognize a limited, equitable exception to the rule, emphasizing that a temporal limitation did not apply “where actual fraud has been committed to obtain the widow’s election.” Id. There, only laches could preclude revocation. See id. Applying these principles, the Court disagreed with the orphan’s court that the widow demonstrated that her delay was a product of fraud, and we explained further that the length of the delay caused “important evidence” to be “lost by death.” Id. Although “the widow sa[id] she did not know the value of the estate during the running of the two-year period,” we held that laches barred revocation. Id.
Does a Lack of Knowledge Permit Revocation Of an Election to Take Elective Share Beyond the Statutory Period?
No – a lack of knowledge is not enough:
Our courts have never held that the time to revoke an election “does not begin to run until the spouse has full knowledge of all essential facts.” Jabbour, 244 A.3d at 1259. As the Daub Court observed, the full-knowledge rule was employed in cases wherein there was no formal mechanism to elect under the will and wherein there was no time limit upon the spouse’s right to claim the elective share instead. That rule also helped determine whether a widow had made a binding “in pais” election, or could be “called upon” to make an on-the-record decision whether to take either the elective or the testate share….But those practices no longer apply. And their demise extinguished the need for courts to assess whether the widow’s (lack of) knowledge as to the value of the estate invalidated her election.
The Pennsylvania Supreme Court elaborated:
To hold that a lack of knowledge alone tolls the statutory period would ignore the basic legal precept that equity follows the law. See Bauer v. P.A. Cutri Co. of Bradford, 253 A.2d 252, 255 (Pa. 1969) (“[A] court of equity follows and is bound by rules of law, and does not use equitable considerations to deprive a party of his rights at law.”). The General Assembly has declared that “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.” 20 Pa.C.S. § 2210(b). The time limit “promote[s] certainty in the settlement of estates.” Daub’s Est., 157 A. at 911. It is a legislative expression that, within six months of the date of probate, all interested parties should know which assets are subject to the rights of the spouse and which are not. Our approval of a tolling principle “would be in the teeth of . . . and practically destroy” the legislative mandate evident in the statute. Minnich’s Est., at 237. We cannot compromise our legislature’s clear emphasis on certainty and finality for no better reason than that the surviving spouse came into new information—information that, critically, she does not allege was fraudulently hidden—years after she made a binding choice to take the elective share. So, a spouse who seeks to revoke an election must do so within the statutory period to make the election.
Allowing Surviving Spouses To Revoke the Election After the Statutory Period Promotes Uncertainty In Estates
One reason for all of the quick deadlines in Pennsylvania probate law is to promote certainty in decedent’s estate. Allowing surviving spouses to revoke their elective share election after the prescribed period citing nothing more than past or present uncertainty about the estate destabilizes what the Pennsylvania General Assembly intended to fix for certainty’s sake.
The Pennsylvania Supreme Court also opined that allowing such a delayed revocation of the election to take elective share would invite surviving spouses to file “provisional” elections to extend the period indefinitely while denying notice of the provisional intention to other beneficiaries or to the decedent’s creditors, all while eluding judicial oversight.
If the surviving spouse needed more time to learn about the assets owned by her deceased husband, she could have requested an extension of time to make the election. 20 Pa.C.S. § 2210(b). Instead of asking for more time, as the PEF Code invites her to do, Arlene filed an election against the will in an abundance of action, and then, over three years later, sought leave to revoke it when she figured out that taking under the will would have been worth more to her than taking the elective share. The Pennsylvania Supreme Court determined that the surviving spouse could not revoke her election to take elective share outside of the six month window set forth in Pennsylvania law.
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