Legal Question in Wills and Trusts in Pennsylvania

Re: Binding

These kind of wills are not binding on the survivor. The children can be (and often are) disinherited. The way to prevent this is by using a special kind of trust (called a "QTIP" trust) that provides support for the surviving spouse, but states that at the surviving spouse's death, the assets go to the children of the first marraige. That way, the assets are not left to unintended beneficiaries.

Your father should see a lawyer who specializes in estate planning.

Re: Binding

The specific language in the will will determine whether the property will automaticaly pass to the children. The will may provide for a life estate for the surviving spouse or it may give the property outright to the spouse. Without seeing the actual language a more thorough answer cannot be given. I offer free consultations.

Re: Binding

A recent case determined that unless mutual Wills contain specified language, they would not be interpreted to create a binding obligation on the surviving spouse requiring the spouse to leave the remaining property to the children of the first to die, and they became disinherited of property that their father accumulated during his marriage to their mother. This is a frequent occurance in second marriages where improper documentation is used. Most good estate planning attorneys will use appropriate documents to assure both objectives: provide for the new spouse, but assure that funds remaining go to the children from the first marriage. This could be done by a Q-Tip Trust in the Will, an inter-vivos (created during the lifetime) trust, and other types of documents. I strongly recommend that you encourage dad that he and the new wife see a qualified estate planning attorney to assure both objectives are provided for in the proper documents. The "moral" obligation is not legally binding and once the new wife inherits, she is free to do with their assets as she desires, with no legal obligation to dad's children. Unfortunately this problem is rarely properly handled, and you should take advantage of this ASAP.