Here is a scenario that catches families off guard far more often than it should: a person executes a will, then later marries (or remarries), and never updates the will to account for the new spouse. When that person dies, the new spouse may not appear anywhere in the will — but Pennsylvania law gives them a powerful right anyway.
A pretermitted spouse (sometimes called an "omitted spouse") is a surviving spouse who married the testator after the will was executed and is not provided for in the will. Under 20 Pa.C.S. § 2507(3), this spouse is entitled to receive the same share of the estate they would have received if the testator had died without a will — the intestate share — unless it appears from the will itself that the omission was intentional.
The intestate share for a surviving spouse under 20 Pa.C.S. § 2102 is substantial:
This is not the same as the elective share (one-third). In many cases, the pretermitted spouse share is larger than the elective share — and it's automatic. The spouse doesn't have to file an election or take any affirmative action. The law simply overrides whatever the will says.
| Feature | Pretermitted Spouse (§ 2507(3)) | Elective Share (§ 2203) |
|---|---|---|
| When it applies | Spouse married testator after the will was made and is not mentioned in the will | Any surviving spouse, regardless of when they married |
| Action required | Automatic — no election needed | Spouse must affirmatively elect within 6 months |
| Share amount | Full intestate share (can be one-half or more) | One-third of eligible property |
| Can it be waived? | Yes — by prenuptial/postnuptial agreement, or if the will shows the omission was intentional | Yes — by prenuptial/postnuptial agreement |
| Can the spouse get both? | No — the spouse gets the larger of the two, but not both. In practice, a pretermitted spouse will almost always take the intestate share because it's usually larger. | |
The pretermitted spouse does not receive the intestate share if "it appears from the will that the omission was intentional." But Pennsylvania courts interpret this narrowly. A general disinheritance clause that says "I intentionally leave nothing to anyone not named in this will" may not be sufficient — especially if it was clearly written before the marriage and couldn't have contemplated the new spouse. The safer practice is to execute a new will or codicil after the marriage that specifically addresses the spouse — even if the intent is to leave them nothing (in which case a prenuptial agreement is essential to prevent the elective share claim).
⚠ The Practical Takeaway
If you get married (or remarried), update your will immediately. If you don't, your new spouse may be entitled to one-half or more of your estate — regardless of what your will says, regardless of what you intended, and regardless of what you told your children. This is especially critical in second marriages where children from a prior relationship are the intended beneficiaries. A 30-minute meeting with your attorney after the wedding can prevent a catastrophic outcome for your estate plan.
If you're administering an estate and discover that the decedent married after the will was executed, you have a potential pretermitted spouse issue. Check the date of the will against the date of marriage. If the marriage came after the will — and the will doesn't mention or provide for the surviving spouse — consult an attorney before making any distributions. Getting this wrong exposes you to personal liability as executor.
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