Legal Insights · Estate Law
Protecting Your Children’s Inheritance When You Remarry in Pennsylvania
Under 20 Pa.C.S. § 2203, a surviving spouse in Pennsylvania has the statutory right to claim one-third of the deceased spouse’s augmented estate regardless of what the will says. For estates with significant value, the one-third elective share can represent hundreds of thousands of dollars redirected from children to a second spouse. A will alone cannot prevent the elective share. The only mechanisms that protect children’s inheritance are a prenuptial agreement waiving the spouse’s statutory rights or a trust structure that removes assets from the augmented estate calculation before death.
Estate planning for second marriages requires coordination across wills, trusts, beneficiary designations, and powers of attorney. The conflict between protecting a new spouse and preserving inheritance for children is not resolved by goodwill or verbal agreements. It is resolved by legal instruments that constrain how assets pass and who can claim them.
Lebovitz & Lebovitz, P.A. · Serving Pittsburgh and Western Pennsylvania since 1933. Based in Swissvale near the Parkway East (Swissvale–Edgewood exit).
Pennsylvania’s Elective Share: The Statutory Override
Your will does not protect your children’s inheritance when you remarry. Pennsylvania law gives your new spouse the right to claim one-third of your augmented estate under 20 Pa.C.S. § 2203 regardless of what the will says. Only a prenuptial agreement or a coordinated trust structure executed before death prevents that claim.
The elective share under 20 Pa.C.S. § 2203 gives a surviving spouse the right to elect against the will and claim one-third of the augmented estate. The augmented estate includes probate assets, certain lifetime transfers, and jointly held property with rights of survivorship. A new spouse who elects against the will can claim this share even if the decedent’s will explicitly left everything to children from a first marriage.
For estates with significant value, the one-third elective share can represent hundreds of thousands or millions of dollars redirected from children to a second spouse. The elective share is not limited by the length of the marriage. A spouse married for one year has the same claim as a spouse married for thirty years. Planning for second marriages must account for this statutory override of testamentary intent.
In Estate of Golas, 537 A.2d 919 (Pa. Super. 1988), the Pennsylvania Superior Court reinforced that the elective share applies to the augmented estate as defined by statute, and testamentary provisions purporting to waive the share are unenforceable without a valid prenuptial or postnuptial agreement. The only legal mechanisms that prevent an elective share claim are a properly executed prenuptial or postnuptial agreement waiving the right, or trust structures that remove assets from the augmented estate calculation.
Pennsylvania law gives your new spouse the statutory right to claim one-third of your augmented estate regardless of your testamentary intent.
Preventing this claim requires a prenuptial agreement or a coordinated trust strategy executed before death. Call 412-351-4422 or schedule a consultation.
QTIP Trusts: Income for Spouse, Principal for Children
The trust gives your spouse income for life, then the principal passes to your children: the spouse cannot redirect it. A qualified terminable interest property (QTIP) trust provides your surviving spouse with all income generated by trust assets for the rest of their life, but the spouse has no power to access the principal, change the remainder beneficiaries, or leave the trust assets to their own children or anyone else. When the surviving spouse dies, the trust principal passes to the remainder beneficiaries you named in the trust document, typically your children from the first marriage.
This structure solves the core conflict in second marriages: your spouse receives financial support for life, but your children are guaranteed the principal. The spouse cannot disinherit your children by will, cannot transfer the trust assets to their own family, and cannot consume the principal. For estates with substantial assets intended for children from a first marriage, QTIP trusts provide the only mechanism that supports both spouse and children without requiring the spouse’s cooperation after your death.
The trust must be properly drafted to meet specific requirements. The surviving spouse must receive all income at least annually, and no one other than the spouse may receive distributions of income during the spouse’s lifetime. The trustee must have clear investment guidelines and cannot allow discretionary invasion of principal except for the spouse’s benefit. Improperly drafted QTIP provisions may fail to qualify for federal estate tax treatment, but the functional outcome (income to spouse, principal to children) remains enforceable under Pennsylvania trust law.
Beneficiary Designation Coordination
Retirement accounts, life insurance policies, and payable-on-death accounts pass by beneficiary designation, not by will. A will that leaves everything to your children has no effect on a 401(k) or IRA that names your new spouse as beneficiary. Pennsylvania law does not automatically revoke beneficiary designations when you remarry, and many individuals do not update designations after a second marriage, leaving the prior spouse or outdated beneficiaries in place.
The failure to coordinate beneficiary designations with overall estate planning intent is the single most common cause of unintended disinheritance in second marriages. A life insurance policy with a death benefit of $500,000 naming the new spouse as beneficiary transfers that amount outside the will, outside any trust, and directly to the spouse. If the estate plan assumed that life insurance would fund a trust for the children, the assumption is wrong, and the plan fails.
Federal law under ERISA requires spousal consent for a married 401(k) participant to name a non-spouse beneficiary. IRAs carry no such requirement. A married IRA owner can name children without the new spouse’s consent, but that election must be made deliberately and documented. Review and update all beneficiary designations after remarriage. For life insurance, name the trust as beneficiary if the goal is to fund the QTIP or provide liquidity for estate taxes.
Power of Attorney Agent Selection in Blended Families
A financial power of attorney gives an agent the authority to manage your assets, access accounts, make gifts, and change beneficiary designations while you are alive but incapacitated. In second marriages, naming your new spouse as agent creates the risk that the spouse will use the power to transfer assets, change beneficiary designations, or make gifts in ways that benefit the spouse or the spouse’s children rather than preserving assets for your children.
The agent under a power of attorney is a fiduciary, but enforcement of fiduciary obligations during incapacity is difficult, expensive, and often too late. If the agent changes IRA beneficiaries from your children to the spouse, transfers real estate into joint tenancy with the spouse, or makes large gifts to the spouse’s children, your children will discover the changes only after you die, and unwinding the transfers may be legally or practically impossible.
Pennsylvania’s Power of Attorney Act was substantially revised in 2015 under Act 95. A valid power of attorney must now be signed before a notary and two witnesses, and the agent must sign a statutory acknowledgment. Documents executed before 2015 that lack this acknowledgment may not be accepted by financial institutions. In blended family situations, consider naming a professional fiduciary, a corporate trustee, or an adult child from the first marriage as agent. If you name your spouse, include specific limitations prohibiting changes to beneficiary designations, transfers to the agent or the agent’s family, and gifts above a specified annual amount.
Prenuptial Agreements: The Only Hard Constraint on Elective Share
A prenuptial agreement is the only mechanism that prevents a surviving spouse from claiming the elective share. A properly executed prenuptial agreement under 23 Pa.C.S. § 3106 can waive the spouse’s right to elect against the will, disclaim any interest in specific property, and establish what the surviving spouse will receive in lieu of statutory rights. Without a prenuptial agreement, every estate planning strategy for second marriages operates within the constraint that the spouse retains the statutory one-third elective share.
Prenuptial agreements for estate planning purposes must satisfy Pennsylvania’s formalities: the agreement must be in writing, signed by both parties, and entered into after full and fair disclosure of each party’s assets and liabilities. Coercion, fraud, or lack of disclosure voids the agreement. In Simeone v. Simeone, 581 A.2d 162 (Pa. 1990), the Pennsylvania Supreme Court held that prenuptial agreements are enforceable without a showing of substantive fairness at the time of enforcement, but the agreement must have been procedurally fair at the time of execution.
For individuals with substantial estates, the prenuptial agreement should specify what the surviving spouse will receive, either as a fixed dollar amount, a percentage of the estate, or specific property, and should explicitly waive the elective share, intestate succession rights, and any claim as a surviving spouse under retirement accounts or life insurance unless those benefits are specifically provided. The agreement must be executed well in advance of the wedding, with both parties represented by independent counsel, and with complete financial disclosure provided in writing. For more on prenuptial agreements in Pennsylvania, see our page on prenuptial and postnuptial agreements.
Common Mistakes That Disinherit Children in Second Marriages
Most estate planning failures in second marriages trace to a small number of predictable errors. These mistakes are not caused by complex legal issues. They are caused by incomplete execution of a plan that was otherwise sound.
The most common mistake is updating the will but not the beneficiary designations. A will leaving everything to children from a first marriage is meaningless if the largest assets in the estate pass by beneficiary designation to the new spouse. Retirement accounts, life insurance, and POD accounts are not controlled by the will. If they name the spouse, they go to the spouse, and the children receive nothing.
The second most common mistake is assuming a verbal agreement or letter of intent will bind the new spouse. A spouse who verbally agrees to leave assets to the decedent’s children has no legal obligation to do so. Once the spouse inherits property, the spouse controls it, and the children have no claim. Verbal agreements are unenforceable in estate matters.
The third mistake is naming the new spouse as power of attorney agent without restrictions. An unrestricted power of attorney allows the agent to change beneficiary designations, transfer property into joint names, and make gifts, all of which can redirect assets away from children. These changes are often irrevocable, and children may not discover them until after death when it is too late to contest them.
The fourth mistake is failing to fund the trust. A trust that holds no assets does nothing. If a QTIP trust is created but the decedent’s assets are never transferred into the trust, the trust is empty, and the assets pass under the will or by beneficiary designation. Trusts must be funded during life or at death through pour-over provisions in the will and properly coordinated beneficiary designations.
The fifth mistake is treating the prenuptial agreement as optional. Many individuals avoid prenuptial agreements because they believe it signals mistrust or creates conflict. The alternative is statutory rules that may not align with intent. A prenuptial agreement does not prevent you from providing for your spouse. It allows you to define what the spouse receives rather than leaving that determination to Pennsylvania’s elective share statute.
Pennsylvania probate proceedings are governed by the Probate, Estates and Fiduciaries Code in Pennsylvania statutes. Estate administration is handled through the Pennsylvania Unified Judicial System in the Register of Wills and Orphans’ Court.
Frequently Asked Questions About Estate Planning for Second Marriages in Pennsylvania
Can I disinherit my new spouse in Pennsylvania?
Not entirely. Pennsylvania law gives a surviving spouse the right to claim one-third of your augmented estate under the elective share statute, 20 Pa.C.S. § 2203, regardless of what your will says. The only way to prevent this claim is through a valid prenuptial or postnuptial agreement in which the spouse waives the right to elect against the will.
What is a QTIP trust and how does it protect my children’s inheritance?
A qualified terminable interest property trust provides income to your surviving spouse for life while preserving the principal for your children. The spouse receives all income from the trust but cannot access or redirect the principal. When the spouse dies, the trust assets pass to your children, not to the spouse’s estate or the spouse’s beneficiaries. For federal estate tax purposes, a QTIP trust qualifies for the marital deduction under 26 U.S.C. § 2056(b)(7), deferring estate tax until the surviving spouse’s death while ensuring the assets ultimately pass to your children.
Do I need a prenuptial agreement if I have a will leaving everything to my children?
Yes, if you want to prevent your spouse from claiming the elective share. A will alone cannot override the statutory one-third elective share that Pennsylvania law grants to surviving spouses. A prenuptial agreement is the only mechanism that waives that right.
What happens to my retirement accounts and life insurance if I remarry?
They pass to whoever is named as beneficiary, not according to your will. If your retirement account or life insurance policy names your new spouse as beneficiary, those assets go to the spouse even if your will leaves everything to your children. You must update beneficiary designations to align with your estate plan.
Can I name my new spouse as my power of attorney agent?
You can, but in blended families it creates risk. An agent under a power of attorney can change beneficiary designations, transfer property, and make gifts. If the agent uses those powers to benefit themselves or their children, your children may be disinherited. Consider naming a professional fiduciary, a corporate trustee, or adding restrictions to the power of attorney.
Will my spouse automatically inherit my house if we own it jointly?
If you own property as joint tenants with right of survivorship, the property passes to the surviving joint tenant automatically at death, outside your will and outside probate. This means your children receive nothing from that property. To preserve the house for your children, hold it as tenants in common or transfer it into a trust.
For prenuptial agreements that coordinate with estate planning, see our page on prenuptial and postnuptial agreements in Pennsylvania; for comprehensive estate planning resources, see our wills, estates, trusts, and probate practice area; for trust planning specifically, see trusts in Pennsylvania.
