If you’re getting remarried after 60, the prenup you’re avoiding is the single most important estate-planning instrument you can sign, and skipping it can quietly disinherit the kids from your first marriage by operation of law, no matter what your will says. State default rules, the surviving spouse’s elective share, and beneficiary designations on retirement accounts can override your intentions and divert assets away from children from a prior marriage.
The Default Rule Nobody Warns You About
When you remarry, every state (except Georgia) gives your new spouse a legal right to claim a slice of your estate even if your will leaves them nothing. It’s called the elective share (sometimes the “spousal share” or “forced share”), and it typically runs from roughly one-third to one-half of your augmented estate, depending on the state and the length of the marriage. Community property states play by different rules, but the outcome is similar: your new spouse has claims your kids don’t.
Layer on the fact that beneficiary designations on retirement accounts control who inherits those dollars regardless of your will, and you have a setup where a well-meaning senior can accidentally leave their children almost nothing.
The Legal Anchor
The elective share is codified state by state (see the Uniform Probate Code §2-202 for the model most states borrow from). On top of that, federal law under ERISA and the Retirement Equity Act of 1984 requires that your spouse be the default beneficiary of your 401(k), and only your spouse can waive that right, in writing, after the marriage. A pre-marriage beneficiary form naming your children on a 401(k) is not binding once you say “I do.” IRAs are governed by state law and the custodian’s contract, but many states apply similar spousal protections.
A properly drafted prenup is the vehicle that lets a spouse waive the elective share, waive ERISA rights (post-marriage confirmation required), and lock in what stays “yours” for your kids.
Who Actually Needs This
This is aimed squarely at couples over 60 entering a second (or third) marriage where at least one partner has children from a prior relationship, a home purchased before the marriage, a pension, or a retirement account built over decades. If you’re in a first marriage and want everything to flow to your shared kids, you likely don’t need this. If you’re bringing meaningful separate assets and heirs into a late-life remarriage, you do.
The stakes are real. Per capita disposable personal income hit $68,958 in 2026 Q2, and income receipts on assets totaled $4,304.5 billion, most of it concentrated in older households.
How to Actually Set It Up
- Sign the prenup before the wedding, with independent counsel for each side and full financial disclosure. Post-nups work in most states but face tougher scrutiny.
- Inside the prenup, have your fiancé waive the elective share, the homestead allowance, and the family allowance in your state.
- Update your will and, ideally, fund a revocable living trust that holds the assets earmarked for your kids.
- After the wedding, have your spouse sign the ERISA spousal consent form at your 401(k) plan naming your children (or a trust) as beneficiary. A pre-wedding form doesn’t count.
- Refresh every beneficiary designation: IRAs, life insurance, annuities, and transfer-on-death accounts. These override the will.
- Fix account titling. Joint tenancy with right of survivorship on the house or brokerage account beats every other document you signed. If you want the kids to inherit, don’t retitle it jointly.
The Catch That Voids Everything
Prenups get thrown out for three reasons: they were signed under duress (handed over the week of the wedding), they lacked full financial disclosure, or one side had no independent attorney. Get all three right, or the document is decorative.
The second trap is the ERISA one. If you sign the prenup, then get married, then never re-execute the 401(k) beneficiary form with your new spouse’s notarized consent, courts have repeatedly ruled the surviving spouse still takes the account. The prenup alone isn’t enough for qualified plans. The paperwork has to follow the wedding.
Skip these steps, and state default rules quietly redirect your estate away from your children, no courtroom drama required.
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