It is not a cheery thought, but it is simply a fact that many people will die every day, and many of them unexpectedly, without planning or the opportunity to plan. If you would be so unlucky today, you are a Pennsylvania resident without a will, you have some substantial assets in your own name (as opposed to being held jointly with a spouse), and you would leave a surviving spouse and children, the very next call you should make is to an estate planning attorney. In the situation described above, dying without a will can truly be a real disaster. You are just not in a place, legally, in which anyone would want to be.
Like every state, Pennsylvania has a statute to cover the situation of someone dying without a will. The technical terms are “dying intestate” and the rules of “descent and distribution.” ¹ Every estate planning lawyer and almost every other lawyer will advise you to have a will, to not let the state have any say in who gets your assets when you pass. Not nearly enough people, married or otherwise, have a will, or one that has been reviewed in the last five years. Nonetheless, if I would ask what most married people say in their wills, what would you guess? I would guess a very high percentage would say “I leave it all to my spouse.” Nonetheless, under Pennsylvania law, if you die without a will leaving a surviving spouse and surviving children, the first $30,000 of your property goes to the surviving spouse, and the balance is divided equally between the surviving spouse and the children. Now think about it, who would ever voluntarily choose this cockamamie dispositive scheme? Absolutely nobody, and neither should you, so get to an estate planner and get a will.
So what was the Pennsylvania legislature thinking when it enacted this rule? It is hard to say for sure, but I expect they were dealing with the vestiges of English common law, some of which the Pennsylvania courts had adopted, rejected or modified over the years, like dower and curtesy, and doing their best to arrive at a rough but fair compromise. When you are trying to cover literally all possible outcomes (we and our families have always been complicated), you are bound to leave some uneven corners and rough edges. It may be time for Pennsylvania to revisit and reform these rules.
The Pennsylvania rules of descent and distribution dictate many other results that people probably would not choose if they took the opportunity to think about it. There are a lot of goofy laws, some that were goofy from the start, some that look goofy now because they were enacted long ago and times have changed. Legislatures aren’t perfect. But in this case, you can totally avoid the reach of this particular set of goofy rules simply by having a will. So do it.
¹ Lawyers like footnotes, and I am required by license to include some legal mumbo jumbo in almost everything I write, so now that part is over with.
Written by E. Morgan Maxwell
Since beginning his own firm, Mr. Maxwell has continued a tax-law oriented practice encompassing a wide range of transactions, planning and dispute resolution. His dispute resolution experience includes involvement at all levels of the Internal Revenue Service (Examinations, Appeals, Collections, Office of Professional Responsibility, the U.S. Tax Court), the Pennsylvania Department of Revenue, the Tax Litigation Section of the Pennsylvania Attorney General’s Office, Pennsylvania Commonwealth Court, Common Pleas Court and local taxing jurisdictions in southeastern Pennsylvania.
