Section 2103 of the PEF Code Provides, in Pertinent Part, As Follows

ARGUMENT

Chapter 21 of the Pennsylvania Probate, Estates and Fiduciaries Code (hereinafter referred to as the “PEF Code”) sets forth the manner in which a decedent’s estate is to be distributed in the absence of a Will or if there is an intestacy as to any portion of a decedent’s estate. 20 Pa.C.S.A. §2101 et seq.

Section 2103 of the PEF Code provides, in pertinent part, as follows:

Shares of Others Than Surviving Spouse. The share of the estate, if any, to which the surviving spouse is not entitled, and the entire estate if there is no surviving spouse, shall pass in the following order:

(1)Issue….

(2)Parents….

(3)Brother, Sisters, or their Issue….

(4)Grandparents….

(5)Uncles, Aunts and their Children, and Grandchildren. If no grandparent survives the decedent, then to the uncles and aunts and the children and grandchildren of deceased uncles and aunts of the decedent as provided in section 2104(1) (relating to taking in different degrees). [italics added]

(6)Commonwealth….

20 Pa.C.S.A. §2103.

Section 2104(1) of the PEF Code limits the extent to which the children and grandchildren of deceased uncles and aunts may inherit by providing that:

(1) Taking in Different Degrees. The shares passing under this chapter to the issue of the decedent, to the issue of his parents or grandparents or to his uncles or aunts or to their children, or grandchildren, shall pass to them as follows: The part of the estate passing to any such persons shall be divided into as many equal shares as there shall be persons in the nearest degree of consanguinity to the decedent living and taking shares therein and persons in that degree who have died before the decedent and have left issue to survive him who take shares therein. One equal share shall pass to each such living person in the nearest degree and one equal share shall pass by representation to the issue of each such deceased person, except that no issue of a child of an uncle or aunt of the decedent shall be entitled to any share of the estate unless there be no relatives as close as a child of an uncle or aunt living and taking a share therein, in which case the grandchildren of uncles and aunts of the decedent shall be entitled to share, but no issue of a grandchild of an uncle or aunt shall be entitled to any share of the estate. [italics added]

20 Pa.C.S.A. §2104(1).

The official Comment to the act of 1965, P.L. 1191, effective December 22, 1965, which amended prior law and adopted this current statutory language, states that “[u]nder this amendment [adding to clause (5) the words “as provided in clause (1) of section 4”], and the amendment to section 4(1)…., children of first cousins will not share in an intestate estate if there is a living first cousin.”[1]

Accordingly, the explicit provisions of Sections 2103 and 2104 of the PEF Code and the expressed legislative intent dictate that, if the decedent is not survived by uncles or aunts but is survived by a child of an uncle or aunt (a first cousin of the decedent), the children of deceased first cousins (first cousins once removed of the decedent) do not share in the distribution of an intestate estate.

The February 2004 edition of the Fiduciary Review explains that, if no uncle or aunt survives the decedent, the intestate estate passes to the children of uncles and aunts, per capita. As reflected in the official Comment, the authors conclude that the children of a deceased first cousin take nothing if there is a living closer relative. A copy of the Intestate Descent in Pennsylvania chart published in such edition is attached hereto, made a part hereof and marked as Appendix A.

This conclusion has been supported by Pennsylvania appellate and trial courts. In In Re Estate of Rosen, 819 A.2d 585 (Pa. Super. 2003), the Pennsylvania Superior Court upheld the lower court’s distribution of an estate to the living first cousins of the decedent, per capita, to the exclusion of first cousins once removed.

In In re Estate of William T. Post, Deceased, 82 Schuylkill 5 (1985), the Orphans’ Court Division of the Court of Common Pleas of Schuylkill County held that no issue of a first cousin are entitled to share in the distribution of an estate unless there are no relatives as close as a first cousin. Accordingly, because there was no living aunt or uncle, the intestate estate passed to first cousins, per capita and not by right of representation, and first cousins once removed were excluded from the distribution of the estate.

More recently, in Miller Estate, 20 Fiduc. Rep. 2d 235, 239 (1986), the Orphans’ Court Division of the Court of Common Pleas of Montgomery County held that the words of Sections 2103(5) and 2104(1) of the PEF Code “are clear that children of first cousins will not share in an intestate estate by representation if there is a living first cousin…Accordingly, there is a per capita distribution of the residue solely among the decedent’s four surviving first cousins.”

[1] For a comprehensive discussion of the development of these sections of the PEF Code, see Bregy, Intestate, Wills and Estates Acts of 1947 (rev’d) §§2103 and 2104.