Estate Planning & Administration
Marriage After Your Will: The Pretermitted Spouse Problem
Last updated February 2026
3 min read
✓ Verified Feb. 2026
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 the will gives the spouse a greater share, or unless it appears from the will that it was made in contemplation of the marriage to the surviving spouse.
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, if the will gives a greater share, or if the will was made in contemplation of the marriage | 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 will was made in contemplation of marriage to the surviving spouse.” This is a narrow exception. A will drafted years before the testator even met the future spouse obviously was not made “in contemplation” of that marriage. Even a will drafted during the engagement may not qualify unless the document itself reflects awareness of the upcoming marriage; for example, by naming the future spouse or referencing anticipated changes to the family. A general disinheritance clause like “I intentionally leave nothing to anyone not named in this will” does not satisfy this test, because it does not demonstrate that the testator was contemplating a specific marriage. 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 unintended 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.
Statutory content on this page was last verified against Pennsylvania statutes (20 Pa.C.S.; 72 P.S. Art. XXI): February 2026. If you are reading this significantly after that date, confirm key provisions with current statute text or contact our office.
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