2204 - Disclaimers, releases and charges against elective share.
§ 2204. Disclaimers, releases and charges against elective share. (a) Disclaimers.--Except as provided in subsections (b) and (c), an election by a spouse to take his elective share shall be deemed a disclaimer of any beneficial interest of the spouse in the following, to the extent that such interest would otherwise be payable to or enjoyed by the spouse after the decedent's death: (1) Property subject to the spouse's election not awarded to the spouse as part of his elective share. (2) Property appointed by the decedent's exercise of a general or special power of appointment, and property passing in default of appointment to the extent that the decedent had power to exclude his spouse from any interest therein. (3) Property in any trust created by the decedent during his lifetime. (4) Proceeds of insurance, including accidental death benefits, on the life of the decedent attributable to premiums paid by him, his employer, partner or creditor. (5) Any annuity contract purchased by the decedent, his employer, partner or creditor. (6) Any pension, profit sharing, stock bonus, deferred compensation, disability, death benefit or other plan established by an employer for the benefit of its employees and their beneficiaries, exclusive of the Federal social security system and railroad retirement system, by reason of services performed or disabilities incurred by the decedent. (7) Community property in the proportion that it represents the decedent's earnings or contributions. (8) All intangible or tangible personal property and all real property owned by the decedent and his spouse by the entireties or jointly with right of survivorship, in the proportion that such property represents contributions by the decedent. (9) All intangible or tangible personal property and all real property given to his spouse by the decedent during his lifetime which, or the proceeds of which, are still owned by his spouse at the time of the decedent's death. (b) Conveyances and releases.--Except as provided in subsection (c), if any of the foregoing beneficial interests has already been accepted or cannot be disclaimed for any other reason, the spouse shall be entitled to an elective share only if the spouse conveys or releases such interest to those who would take it if the spouse had disclaimed it, and such conveyance or release shall be valid regardless of any spendthrift or similar provision. (c) Charges against elective share.--Notwithstanding the provisions of subsections (a) and (b), the spouse may elect to retain any beneficial interest described in subsection (a) which immediately after the decedent's death consists of property owned by the spouse outright or in fee simple absolute, and have the value thereof at the time of the decedent's death charged against the elective share. The value at the time of the decedent's death of any beneficial interest described in subsection (a), regardless of its form, shall also be so charged against the elective share to the extent that it cannot be disclaimed, conveyed or released. If any property retained by the spouse pursuant to this subsection would have reverted to the personal representative of the decedent's estate under section 2211(b)(2) and (3) (relating to determination of effect of election; enforcement) had the property been disclaimed, its value shall be added to the value of the property passing by will or intestacy for the purpose of computing the spouse's elective share under section 2203(a)(1) (relating to right of election; resident decedent). (d) Definition of "beneficial interest".--The term "beneficial interest" as used in this section shall include any power of appointment or power of consumption and any benefit arising from a direction by the decedent regarding the source of payment of inheritance or estate taxes. (e) Conditional decree.--Any award to the electing spouse shall be conditioned upon: (1) the spouse's delivery, in recordable form in the case of real estate, of such disclaimers, releases or conveyances as may be appropriate to insure protection to the person or persons entitled to disclaimed, released or conveyed property; and (2) the filing with the court of proof of compliance with the condition. (July 11, 1980, P.L.565, No.118, eff. 60 days; Dec. 16, 1992, P.L.1163, No.152, eff. imd.) 1992 Amendment. Act 152 amended subsec. (a)(8) and (9). Section 27(d) of Act 152 provided that the amendment of subsec. (a)(8) and (9) shall apply to the estates of decedents dying on or after the effective date of Act 152. 1980 Amendment. Act 118 amended subsec. (c). Cross References. Section 2204 is referred to in section 2205 of this title.