Will the Beneficiary of your Gun (NFA) Trust receive the Firearms? – The Elective Share issue…

If you have a Gun Trust, are you sure the beneficiary(ies) you specified will receive the firearms upon your death? Pennsylvania law provides that if an individual is married, upon the that individual’s death, the spouse may, at his/her discretion, take an elective share of the estate. 20 P.A.C.S. § 2203. The PA Legislature enacted this statute to prevent a spouse from writing the other spouse out of his/her Will. However, even if you have not written your spouse out of your Will, your spouse has the power to take the elective share, in lieu of that which is provided in your Will.

In 20 PA.C.S. § 2203(a), the PA Legislature empowered a spouse to take one-third (1/3) of specific types of property. § 2203(a)(3) gives a spouse the power to take one-third (1/3) of a revocable trust. Thus, even if you have specified that the beneficiary of your NFA firearm(s) is your son, your spouse can choose to take an elective share and take one-third (1/3) of the items in your revocable trust.

Nevertheless, you can have your spouse waive his/her right to an elective share, either in whole or in part. Specifically, “The right of election of a surviving spouse may be waived, wholly or partially, before or after marriage or before or after the death of the decedent.” 20 PA.C.S. § 2207. Hence, irregardless of whether you are currently married or in the process of becoming married, your spouse can either 1. waive his/her right to an elective share in entirety or 2. waive his/her right to an elective share with regards to a specific piece of property, such as your Gun Trust.

If a waiver is needed, it must be very specific to be enforceable; thus, you should consult an attorney for a properly drafted waiver.

This is an important issue for ANY individual with a Gun Trust who is not leaving his/her NFA firearms to his/her spouse. This includes individuals who institute a Gun Trust prior to marriage, because even though PA is a separate property state, a spouse still has the power to take an elective share of any revocable trust that his/her spouse has control over.

If you need a Gun Trust or a waiver for your existing Gun Trust, contact us, today.

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