Estate Planning · Family Law · Pittsburgh
You Just Got Remarried in Pennsylvania: What the Law Does Next
You have done this before. You know what a beneficiary designation is. You know what happens when the will does not get updated. You know what it costs when the documents do not catch up with the life. Under 20 Pa.C.S. § 2507(3) your new spouse has statutory rights to your estate whether your paperwork reflects that or not. Remarriage does not fix the documents. You do. This time.
Most people who remarry know exactly what they did not do right the first time. The retirement account they meant to update. The will they never rewrote. The POA that still named the wrong person when the emergency came. The difference this time is that you know what the list looks like. This page is the list.
Your retirement account still names your ex. Your will still reflects your first marriage. Your new spouse has statutory rights to your estate whether you planned for them or not. Remarriage does not fix the documents. You do.
Call 412-351-4422 or schedule a consultation to coordinate your remarriage estate plan before something forces the issue.
What did you not do last time?
I never updated my beneficiary designations.
The retirement account that still names your ex goes to your ex regardless of the new will and the new marriage. Update every designation now. This is the one that surprises families most because the will looks fine and the account is the problem.
My will is still from my first marriage.
That will is still valid. It also creates a pretermitted spouse claim your new spouse can use to take an intestate share regardless of what it says. A new will that intentionally addresses both families eliminates the conflict.
I have children from my first marriage.
Your children’s inheritance competes with your new spouse’s statutory rights. Without a plan that specifically protects it a surviving new spouse can redirect assets you intended for your children. A QTIP trust prevents that.
We did not get a prenuptial agreement.
You know how that went last time. A postnuptial agreement executed after the remarriage addresses the same questions — premarital assets, the business, spousal support, the children’s protection. Pennsylvania enforces them.
My POA still names my ex or the wrong person.
Pennsylvania revokes an ex-spouse’s POA authority upon divorce. But if the alternate agent named in the document is not your new spouse the document does not reflect your current life. New POAs naming the new spouse need to be executed now.
My new spouse has children from a prior marriage too.
Two families, two sets of children, one estate. Without a coordinated plan assets can pass to the surviving spouse and then to their children rather than yours. The plan needs to address what each family receives and from which assets.
My will names my ex as guardian of my kids from the first marriage.
That may still be right for those children. But if you now have children with your new spouse your ex should not be their guardian. The will needs to distinguish which children the designation applies to and name the right person for each family.
What Remarriage Changes Automatically — and What It Does Not
Remarriage in Pennsylvania creates immediate legal rights for the new spouse regardless of what your existing documents say. Under 20 Pa.C.S. § 2507(3) a spouse not mentioned in a will executed before the marriage is a pretermitted heir who may claim an intestate share even if the will leaves everything to your prior children. Remarriage also establishes the new spouse’s rights under Pennsylvania intestate succession — if you die without a valid will the new spouse receives a share under 20 Pa.C.S. § 2102 that may significantly reduce what your children from the first marriage receive.
What remarriage does not change automatically: beneficiary designations on retirement accounts, life insurance, and payable-on-death bank accounts. Those are contracts with financial institutions that operate independently of who you married, who you divorced, and what your new will says. The retirement account that still names your ex goes to your ex. The new marriage certificate does not change that. The new will does not change that. Updating the designation form with the plan administrator changes it. That is all that changes it.
The Beneficiary Designation Problem — Again
After a remarriage every beneficiary designation from the prior marriage should be reviewed and updated to reflect the new family structure. Retirement accounts, life insurance policies, payable-on-death bank accounts, transfer-on-death investment accounts. Every one of them. ERISA-governed retirement plans — 401(k), 403(b), pension — require the current spouse to be named as beneficiary or to sign a written spousal waiver if someone else is to receive the account. If you want your children from the first marriage to receive your 401(k) your new spouse must waive that right in writing. This is not automatic. It cannot be done by will. The plan administrator requires a signed waiver on file.
This is the step most people skip. It is the step that produces the worst outcomes. A well-drafted new will, a carefully structured trust, a postnuptial agreement — all of it becomes irrelevant when the retirement account names the wrong person and the beneficiary designation controls. For a full discussion see our page on what families learn too late about beneficiary designations.
Protecting the Children From the First Marriage
The central estate planning challenge in a remarriage with prior children is providing for the new spouse without redirecting assets away from those children. Pennsylvania intestate succession gives the surviving spouse priority. Without planning a surviving new spouse could inherit everything and then leave it to their own children when they die. Your children from the first marriage receive nothing from assets that were supposed to be theirs.
A QTIP trust — Qualified Terminable Interest Property trust — is the standard solution for this situation. The QTIP trust provides income to the surviving spouse during their lifetime while preserving the principal for the children from the prior relationship. The surviving spouse is supported. The prior children receive the remainder at the surviving spouse’s death. The principal cannot be redirected if the surviving spouse remarries again. For a full discussion see our page on QTIP trusts in Pennsylvania.
The New Will: Writing It for Two Families This Time
The will from the first marriage is still valid. It also creates a pretermitted spouse problem that the new spouse can exploit to claim an intestate share regardless of what the will directs. The solution is a new will executed after the remarriage that acknowledges the new spouse and intentionally addresses what each family member receives. A will that says “I intentionally make no provision for my spouse” is legally effective in Pennsylvania if the spouse was provided for through other means — a QTIP trust, beneficiary designations, jointly held property. A will that simply ignores the new spouse is the document that produces litigation.
The new will also needs to address guardian designations for any minor children, trustee succession for any existing trusts, and coordination between the will and the beneficiary designations that exist outside it. A will drafted for a first marriage typically addresses none of the blended family issues that a remarriage creates. For a full discussion see our page on wills and trusts in Pennsylvania.
Guardian Designations: The Right Person for the Right Children
A will from the first marriage probably names your ex-spouse as guardian of your children from that marriage. That may still be right for those children — the other parent is usually the natural choice. But if you now have children with your new spouse your ex is not their guardian. Your new spouse is. The will needs to say that explicitly and name the right guardian for each set of children. A single guardian designation that applies to all your children without distinguishing between them creates exactly the conflict you do not want a judge resolving.
If you have children with your new spouse your ex should have no role in raising them unless you chose that intentionally. If all your children are from the first marriage and the other parent is your ex the guardian designation may still be correct — but the will should say so explicitly rather than leaving it ambiguous. Name a primary guardian and an alternate for each group of children. Make the distinctions explicit. Do not leave a judge to figure out what you meant.
The Postnuptial Agreement: Getting It Right This Time
A prenuptial agreement before a remarriage is more common and more important than before a first marriage. You have more assets, more history, more obligations, and more people whose interests need to be protected. If the prenuptial agreement did not happen before the wedding a postnuptial agreement addresses the same questions after. Pennsylvania enforces postnuptial agreements under 23 Pa.C.S. § 3106 when voluntarily executed with full financial disclosure and the opportunity for independent counsel.
A postnuptial agreement in a remarriage context typically addresses how premarital assets are treated in a divorce, how the business is classified, what happens to the family home, what spousal support looks like, and how each spouse’s children are protected. Without it those questions are answered by Pennsylvania’s equitable distribution statute at divorce or by the intestate succession statute at death. Neither was designed with your specific blended family in mind. You already know what it looks like when those documents make the decisions instead of you. For a full discussion see our page on prenuptial and postnuptial agreements in Pennsylvania.
Powers of Attorney and Healthcare Directives: Update Them Now
Pennsylvania revokes an ex-spouse’s authority as agent under a power of attorney upon divorce under 20 Pa.C.S. § 5605(c). So the ex’s authority was revoked when the divorce was finalized. But if the alternate agent named in the document — a sibling, a parent, a friend from the first marriage — is not your new spouse the document does not reflect your current life. New powers of attorney naming the new spouse as primary agent should be executed after the remarriage. A healthcare power of attorney naming the new spouse as healthcare agent ensures the right person makes medical decisions in an emergency and prevents a dispute between the new spouse and your adult children from the first marriage about who gets to decide.
Illustrative example: A Pittsburgh man remarried at 58. He had two adult children from his first marriage and a substantial retirement account. He updated his will after the remarriage, leaving half his estate to his new wife and half to his children. He never updated his retirement account beneficiary designation, which still named his first wife — his ex-spouse of eleven years. When he died four years into the second marriage his new wife received half the probate estate as the will directed. His ex-wife received the retirement account — the largest single asset in the estate — because the beneficiary designation had never been changed. His children received nothing from the retirement account. His new wife received nothing from it. The asset went to a woman he had been divorced from for eleven years. His new will addressed the probate estate perfectly. It had no authority over the retirement account. Nobody had told him the will and the account were two different things governed by two different documents.
Pennsylvania wills and estate succession are governed by Title 20 of the Pennsylvania statutes. Pretermitted spouse rights are at 20 Pa.C.S. § 2507(3). Spousal intestate rights are at 20 Pa.C.S. § 2102. Postnuptial agreements are governed by 23 Pa.C.S. § 3106. Powers of attorney are governed by 20 Pa.C.S. Chapter 56.
Frequently Asked Questions About Remarriage and Estate Planning in Pennsylvania
Does my new spouse automatically inherit if I die without updating my will?
If you die with a will that predates the remarriage and does not mention the new spouse, the new spouse is a pretermitted heir under 20 Pa.C.S. § 2507(3) and may claim an intestate share regardless of what the will directs. If you die without any will the new spouse has priority over your children from the prior marriage under Pennsylvania intestate succession. A new will executed after the remarriage that intentionally addresses what each family member receives is the only way to control the outcome.
Can I leave everything to my children from my first marriage and nothing to my new spouse?
Yes, if the new spouse waives their statutory rights in a prenuptial or postnuptial agreement. Without a waiver a surviving spouse in Pennsylvania has statutory rights that cannot be entirely eliminated by the will alone. A postnuptial agreement in which the new spouse voluntarily waives inheritance rights with full financial disclosure is the standard mechanism for accomplishing this outcome.
What is a QTIP trust and why do blended families use it?
A Qualified Terminable Interest Property trust provides income to the surviving spouse during their lifetime while preserving the principal for children from a prior relationship. The surviving spouse cannot access or redirect the principal. At the surviving spouse’s death the principal passes to the prior children. It is the standard tool for providing for a new spouse without disinheriting the children from the first marriage.
Does remarriage affect my ex-spouse’s rights to my retirement account?
No. A beneficiary designation naming an ex-spouse controls regardless of divorce, remarriage, or a new will. ERISA-governed plans require the current spouse to be named as beneficiary or to sign a written waiver for someone else to receive the account. If you want your new spouse to receive your 401(k) update the beneficiary designation. If you want your children to receive it your new spouse must sign a written waiver. The new marriage certificate and the new will are irrelevant to this question.
We did not get a prenuptial agreement. Is it too late?
No. A postnuptial agreement executed after the remarriage addresses the same issues — how premarital assets are treated in divorce, how the business is classified, what spousal support looks like, and how each spouse’s children are protected. Pennsylvania enforces postnuptial agreements under 23 Pa.C.S. § 3106 when voluntarily executed with full financial disclosure. You already know what happens when these questions get answered by the divorce statute instead of a document you negotiated. A postnuptial agreement is the alternative.
My power of attorney still names my ex. Is that a problem?
Pennsylvania revoked your ex-spouse’s authority as your POA agent when the divorce was finalized under 20 Pa.C.S. § 5605(c). But if the alternate agent is not your new spouse the document does not reflect your current intentions. Execute new powers of attorney naming your new spouse as primary agent. If you become incapacitated without a current document your new spouse may not have clear legal authority to act and a dispute between your new spouse and your adult children from the first marriage about who gets to decide is the result.
For related topics see our pages on QTIP trusts in Pennsylvania, prenuptial and postnuptial agreements, beneficiary designations in Pennsylvania, wills and trusts in Pennsylvania, and you just got married in Pennsylvania. Part of the When Life Changes series.