Blended Family Estate Planning in Pennsylvania: The Elective Share Trap

Second marriages bring real happiness, and they also bring one of the trickiest problems in Pennsylvania estate planning: how do you provide for a spouse without accidentally disinheriting your own children, or vice versa? Pennsylvania law has specific rules that make this problem worse if you do not plan around them — most importantly, the surviving spouse's elective share.

The elective share: a spouse's guaranteed minimum

Under 20 Pa.C.S. § 2203, a surviving spouse in Pennsylvania cannot be fully disinherited, even by a will (or a trust) that says otherwise. A surviving spouse has the right to "elect against" the will and claim one-third of the decedent's estate, regardless of what the will or trust actually provides. This right is not limited to probate assets — § 2203 reaches certain assets that would otherwise seem to avoid probate entirely, including some revocable trusts created by the decedent and certain jointly held property, specifically to prevent someone from defeating the elective share simply by re-titling assets before death.

For a blended family, this matters enormously. A parent who wants most of their estate to go to their own children from a first marriage cannot simply write a will that says so and assume it will be honored if the surviving second spouse decides to elect against it instead.

Marriage after a will is signed

A related trap involves timing. Under 20 Pa.C.S. § 2507, marriage does not automatically revoke an earlier will. But if someone signs a will and then marries afterward, the new spouse — unless the will specifically provided for this possibility or was made in contemplation of the marriage — is entitled to receive the same share they would have received under intestacy, as if no will existed at all. Many people update a will after a divorce but forget to update it again after remarrying, only to have a new spouse's share determined by the intestacy formula rather than by anything actually written down.

The "I trust my spouse to take care of the kids" mistake

The single most common blended-family planning mistake our office sees is a will that leaves everything outright to the surviving spouse, on the theory that the spouse will "do the right thing" and eventually pass on an inheritance to the decedent's children from a prior relationship. This almost never works out the way it is intended. Once assets pass outright to a surviving spouse, that spouse has complete legal control — no legal obligation binds them to leave anything to a stepchild. Even a spouse who intends to do right by the stepchildren can be persuaded otherwise by new circumstances, new advisors, a new remarriage of their own, or simply a change of heart over time.

A marital trust: providing for both generations at once

The standard solution is a marital trust (sometimes structured like a QTIP trust) built into a will or revocable living trust. Rather than an outright bequest, the deceased spouse's share passes into a trust that:

• Pays the surviving spouse all of the trust's income for life, and often allows for principal distributions for health, support, and maintenance.
• Lets the surviving spouse continue living in the family home for life, or until remarriage or another triggering event, depending on how the trust is drafted.
• Preserves the remaining principal, on the surviving spouse's death, for the children of the first marriage (or whichever beneficiaries the settlor chooses) — rather than leaving it to the surviving spouse's own discretion or estate plan.

This structure lets a blended family have it both ways: genuine, lifelong financial security for the surviving spouse, and a guarantee that what is left ultimately reaches the children the deceased spouse actually intended to benefit. A properly drafted marital trust can also be structured to satisfy the elective share, avoiding a later dispute entirely.

Prenuptial and postnuptial waivers

The elective share can also be waived, in whole or in part, by a valid prenuptial agreement signed before the marriage or a postnuptial agreement signed afterward. For couples entering a second marriage later in life, particularly where each spouse already has adult children and separate assets, a waiver is often the cleanest way to guarantee that each spouse's own estate plan for their own children will be honored, while still leaving room for whatever voluntary provisions the couple wants to make for each other.

Beneficiary designation mismatches

Wills and trusts are not the only documents that matter. Retirement accounts, life insurance policies, and payable-on-death bank accounts all pass according to their own beneficiary designations, regardless of what a will says. It is extremely common in blended families for an old beneficiary form — naming a first spouse, or naming only the biological children — to still be on file years after a remarriage or a new estate plan is signed. Reviewing every beneficiary designation alongside the rest of the estate plan is essential; a marital trust accomplishes nothing if a large IRA still names an ex-spouse outright.

Pennsylvania inheritance tax and stepchildren

One frequently misunderstood point involves the Pennsylvania inheritance tax. Under 72 P.S. § 9102's definition of "lineal descendants," a stepchild of the decedent is treated as a lineal descendant for Pennsylvania inheritance tax purposes, and is taxed at the 4.5% lineal rate rather than the 15% rate that applies to unrelated beneficiaries — even without a formal adoption. That said, this favorable treatment does not automatically extend further down the family tree: a stepchild's own children, or other more distantly related or unrelated beneficiaries, may fall outside that definition and be taxed at the higher 15% rate. Blended families should confirm exactly who is receiving what, and at what tax rate, rather than assuming the same rate applies to everyone with a family connection.

Talk with a Pennsylvania estate planning attorney

Blended-family planning requires balancing real, sometimes competing, obligations to a spouse and to children from an earlier relationship — and Pennsylvania's elective share and intestacy rules do not do that balancing for you. Our office regularly designs revocable living trusts and irrevocable trusts to solve exactly this problem, alongside carefully drafted wills. Schedule a free consultation to talk through your family's structure and make sure everyone you intend to provide for actually will be.

Life insurance and separate property as an alternative solution

Not every blended family needs a marital trust to solve this problem. Some couples instead use life insurance, naming children from a prior marriage as direct beneficiaries of a policy funded during the marriage, while leaving jointly titled property or retirement accounts to the surviving spouse outright. This approach keeps assets clearly separated by purpose from the outset, avoids any dispute over the elective share because life insurance proceeds pass by contract rather than through the probate estate, and can be simpler to administer than an ongoing marital trust. The right structure depends heavily on the size of the estate, the ages of the children, and how much the couple wants to keep assets separate versus shared during their lifetimes — a conversation worth having early rather than after a health crisis forces the issue.