Updated October 8, 2026. Quick answer: No. Pennsylvania is a common law state. At divorce, 23 Pa.C.S. section 3502, headed “Equitable division of marital property.”, has the court divide the marital property, and at death the surviving spouse has an elective share. The IRS lists nine community property states.
Pennsylvania community property at a glance
| Item | What the documents say |
|---|---|
| Regime | Common law |
| At divorce | The court equitably divides the marital property (23 Pa.C.S. section 3502) |
| At a spouse’s death | The surviving spouse may take an elective share of one-third of listed property (20 Pa.C.S. section 2203) |
| Federal basis at the first death | A qualified joint interest between spouses: one-half is included in the estate and steps up |
| Source | Pennsylvania General Assembly; IRS Publications 551 and 555; 26 U.S.C. 1014 |
What the Pennsylvania statutes say
Pennsylvania’s divorce statute speaks of marital property, not community property. Section 3502(a) says the court “shall equitably divide, distribute or assign, in kind or otherwise” the marital property, “without regard to marital misconduct in such percentages and in such manner” as the court considers just.
At divorce in Pennsylvania
The division is a court judgment on the facts, not a formula: section 3502 lists the factors, and nothing in the section sets an equal split.
At a spouse’s death in Pennsylvania
Death is governed by 20 Pa.C.S. section 2203, headed “Right of election; resident decedent.” A surviving spouse of a married person domiciled in Pennsylvania “has a right to an elective share of one-third of the following” property, which the section then lists.
What it does to basis when the first spouse dies
Because Pennsylvania is not on the IRS’s list of community property states, a couple’s basis at the first death depends on title. IRS Publication 551 says to “Include one-half of the value of a qualified joint interest” in the decedent’s gross estate, and the survivor’s basis is the cost of the survivor’s own half plus the basis in the half inherited. Property in the decedent’s name alone is different: 26 U.S.C. 1014(a) gives the heir a basis equal to the property’s fair market value at the date of the decedent’s death.
Computed illustration, not tax advice: suppose a Pennsylvania couple paid $100,000 for shares held as a qualified joint interest, and the shares are worth $400,000 when one spouse dies. The survivor’s basis is the total of two halves: $200,000 for the half that steps up plus $50,000 as the cost of the survivor’s own half, which makes $250,000. A sale at $400,000 would then show a gain of $150,000. In a community property state the same facts would give a basis of the whole $400,000. CMG’s common law step-up page goes through the difference.
What the documents do not say
- The intestate share statute was not read.
Common mistakes
- Assuming equitable means equal; the statute directs a division the court considers just and sets no fixed percentage.
- Assuming the answer in this state settles it for a couple who move; the rules depend on the state where the spouses are domiciled and, for property in a trust, on the trust.
Related: community property states by state, why only half steps up in a common law state, Pennsylvania retirement taxes, and Pennsylvania probate cost.
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Answer againSources
- Section 3502 Equitable division of marital property, Title 23 Pa.C.S.: https://www.legis.state.pa.us/WU01/LI/LI/CT/HTM/23/00.035.002.000..HTM
- Section 2203 Right of election; resident decedent, Title 20 Pa.C.S.: https://www.legis.state.pa.us/WU01/LI/LI/CT/HTM/20/00.022.003.000..HTM
- IRS Publication 551, Basis of Assets (December 2025): https://www.irs.gov/pub/irs-pdf/p551.pdf
- 26 U.S.C. 1014, Basis of property acquired from a decedent (United States Code, 2024 Edition): https://www.govinfo.gov/link/uscode/26/1014?link-type=html
Sources: the primary documents linked above, read on October 8, 2026. General information, not tax advice. Your own facts decide the outcome, and a tax professional or the state agency itself is the right place to confirm anything consequential.