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.
Published by Joshua Prince, Esq.
With our 2nd Amendment rights being attacked at both the Federal and State level, and the ATF (Burea of Alcohol, Tobacco, Firearms, and Explosives) trying to close down FFLs (Federal Firearms Licensees) for minor infractions while making FFLs the scapegoat when the ATF's records are inaccurate, I want to take this opportunity to introduce myself. I am one of only a handful of attorneys across the US that practices in the niche area of law known as firearms law. I decided to concentrate my legal practice on firearms law not only because I am a shooter and firearms enthusiast, but also to ensure that our inalienable Right to Keep and Bear Arms is never encroached upon.
I handle cases at the Federal and State level for both FFLs and individuals. At the federal and state levels for individuals, I actively defend the 2nd Amendment of the US Constitution and Section 21 of the PA Constitution, as well as, help individuals with:
- License to Carry Firearms Denials;
- Challenges to Erroneous PICS Denials;
- Relief from Firearms Disabilities;
- Estate Planning Advice;
- Gun/NFA Trusts; and
- 42 USC 1983 Actions for Deprivation of Civil Rights
At both the state and federal levels, I represent FFLs and SOTs throughout Pennsylvania and the US regarding:
- ATF Compliance Inspections;
- Warning Letters and Hearings;
- FFL Revocations;
- Corporate Structure Advice
- Indoor/Outdoor Range Implementation; and
- Forfeiture Proceedings
In following my love for firearms and firearms law, I have taught several Continuing Legal Education (CLE) seminars on Firearms in Estates and Trusts and Firearms Law 101 for several Bar Associations, including Berks, Cumberland, and Dauphin Counties. I also planned and taught several Firearms in Estates CLE classes for the Pennsylvania Bar Institute (PBI).
While at Widener Law School, I was a member of the Widener Law Journal. I wrote an article on the Inaccuracy of the National Firearms Registration and Transfer Record (NFRTR). I also had an article published on Fee Disputes in Workers Compensation cases in the Widener Law Journal, Volume 18, No. 2.
You can often find me posting on several internet forums, including Subguns, Uzitalk, AR15, and PAFOA. I also hold PA Firearms Law classes for local ranges to inform the public on the firearm laws of the Commonwealth.
Following in my father's footsteps, I am also a Board member for the Pottstown Police Athletic League (PAL).
View all posts by Joshua Prince, Esq.
Prince Law Offices Blog 