Is my aunt legally entitled to the money in my deceased father’s bank account just because she is listed on it?

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Is my aunt legally entitled to the money in my deceased father’s bank account just because she is listed on it?

My legally married (and living with his wife) father has a an account with his cousin listed on it but the cousin never contributed any money into the account; it was all my father’s. Now that he is deceased, is the money legally his wife’s or his cousins?

Asked on November 1, 2010 under Estate Planning, Pennsylvania

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

Generally, a jointly held account such as this has "rights of survivorship" attached to it.  This means that upon one of the joint owner's deaths, the surviving owner(s) take(s) over the account as the sole and exclusive owner; it is not subject to the claims of others (e.g. heirs/beneficiaries).  However in PA, as in most other states, you can't disinherit your spouse. Public policy dictates that a surviving spouse does not become impoverished due to the loss of the support of the deceased spouse as well as to reward the surviving spouse's contribution to the financial success of the marriage.  If a Will that makes little or no provision for a surviving spouse, or if title of assets have been set up so that there is no probate estate, a surviving spouse is entitled to elect a statutory forced share (ie an "elective share") of 1/3 of various property interests of the decedent.  Included in such assets is joint property owned with another to the extent the decedent could have conveyed or revoked the entire joint account. For example, a joint bank account can be closed by either owner. Thus, a surviving spouse could elect a share of the entire joint bank account to the extent it is attributable to contributions from the decedent.

However, the share is not automatically paid. The surviving spouse must "elect" to take the share. The spouse has 6 months from the date of death or the date of probate, whichever is later,  to make this election. It is made by filing a claim with the Clerk of the Orphan's Court in the county of the decedent's domicile.

It should be noted that, if the surviving spouses makes the election to take the 1/3 share, then he or she gives up any other provisions that were made for him or her. Making the election is considered to be a disclaimer of all benefits passing to the surviving spouse under the Will.  Additionally, certain interests are not subject to the election.  For example, any transfers made with the consent of the surviving spouse; life insurance on the decedent's life, or retirement plans. Finally, if there is a pre-nuptial agreement or post-nuptial agreement, the surviving spouse may have waived their right to make this election.

Since I don't have all of the facts of the case, your father's wife needs to consult with an estate/probate attorney as to all of this.


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