Pretermitted Spouse in Pennsylvania

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.

What Is a Pretermitted Spouse?

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.

Why This Matters: The Numbers

The intestate share for a surviving spouse under 20 Pa.C.S. § 2102 is substantial:

• If the decedent had no children and no surviving parent: the spouse takes the entire estate
• If the decedent had no children but is survived by a parent or parents: the spouse takes the first $30,000 plus one-half of the balance
• If the decedent's children are also children of the surviving spouse: the spouse takes the first $30,000 plus one-half of the balance
• If the decedent had children from a prior relationship: the spouse takes one-half of the estate

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 is automatic. The spouse does not have to file an election or take any affirmative action. The law simply overrides whatever the will says.

How This Is Different from the Elective Share

The “Contemplation of Marriage” Defense

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).

What Executors Need to Watch For

If you are 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 does not 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): Jun. 2026. If you are reading this significantly after that date, confirm key provisions with current statute text or contact our office.