Planning for a second marriage in Florida means building an estate plan that honors a new spouse while protecting children from a prior relationship, and it almost always requires coordinating that plan with a prenuptial (or postnuptial) agreement. In practice, that coordination is the whole game: Florida gives a surviving spouse powerful statutory rights to a deceased spouse’s estate, and a properly drafted marital agreement is the primary tool for adjusting or waiving those rights so the documents pull in the same direction instead of fighting each other.
If you are an adult child watching a widowed or divorced parent remarry later in life, this is the moment to encourage a conversation. Not because the new partner is a threat, but because Florida law has firm defaults that will override a stale will or a handshake promise. When the prenup and the estate plan are drafted in isolation, the result is litigation between a surviving spouse and the kids. When they are drafted together, everyone knows the deal.
Why Second Marriages Need Special Estate Planning in Florida
A first marriage typically involves spouses building one shared estate, leaving everything to each other and then to their joint children. A second marriage scrambles that math. You may have a house you owned before the marriage, retirement accounts named for a former spouse, children who expect to inherit, and a new spouse who reasonably expects to be cared for. Florida’s default rules were not written for that situation, so silence usually produces an outcome no one actually wanted.
Three Florida doctrines do most of the damage when they are ignored: the spousal elective share, homestead descent restrictions, and the rules governing marital agreements. Each can quietly redirect assets away from your children and toward your new spouse, or trap your new spouse in a property arrangement they cannot afford. You cannot plan around them by accident.
The Florida Elective Share: The Right You Cannot Ignore
Under Florida Statutes Chapter 732, a surviving spouse who is intentionally left out of a will is not simply out of luck. Section 732.201 grants the surviving spouse an elective share equal to 30 percent of the elective estate. Critically, the elective estate is broad. It reaches well beyond the probate assets and pulls in many non-probate transfers, certain revocable trust assets, payable-on-death accounts, and property the decedent controlled during life. The Legislature designed it precisely to stop someone from disinheriting a spouse by shuffling assets into trusts and beneficiary designations.
For a second-marriage couple, the elective share is the silent partner at the table. Imagine a father who remarries, keeps a will that leaves everything to his three children, and never updates it. He believes the children are protected. They are not. After his death, the new spouse can file an election and claim 30 percent of a very large pool of assets, and the children’s inheritance shrinks accordingly. The election generally must be filed within six months after service of the notice of administration or within two years of the date of death.
There are really only two clean ways to manage the elective share in a second marriage:
- Satisfy it deliberately. Decide what the surviving spouse should receive and structure the plan so that share is provided outright or in a qualifying trust, removing the incentive to litigate.
- Waive it by agreement. Use a valid prenuptial or postnuptial agreement in which the spouse knowingly waives the elective share, so the children’s inheritance is secure.
Most blended-family plans use a blend of both. The spouse waives the statutory right and instead receives a defined, negotiated benefit that everyone has seen in writing.
Homestead: Florida’s Most Misunderstood Trap
Florida’s homestead protections are generous, but they come with descent restrictions that ambush second marriages. Under Section 732.401, if a decedent is survived by a spouse and one or more descendants, the homestead does not simply pass under the will. By default, the surviving spouse receives a life estate in the homestead, with a vested remainder to the descendants. The spouse may instead elect, within a statutory window, to take an undivided one-half interest as a tenant in common, with the other half passing to the descendants.
Read that again, because it is the source of countless second-marriage disputes. The new spouse and the children of the first marriage become co-owners of the family home, often people who barely know each other and who have very different financial interests. The life-estate version once trapped surviving spouses with a property they could not afford to maintain and could not sell without the remaindermen’s cooperation. Florida amended the law to add the one-half tenancy-in-common election as a cure, but a tenancy in common with your late spouse’s adult children is still a recipe for conflict.
The fix is a homestead waiver. A surviving spouse can waive homestead rights before death, but Florida is exacting about the formalities. Under Section 732.702, the waiver must be in a written contract, agreement, or waiver signed by the waiving spouse in the presence of two subscribing witnesses. A generic prenup clause that fails these formalities will not reliably waive homestead. This is one of the most common drafting errors I see, and it is entirely avoidable.
Prenuptial and Postnuptial Coordination: Making the Documents Agree
Florida premarital agreements are governed by Section 61.079, the state’s version of the Uniform Premarital Agreement Act, which applies to agreements signed on or after October 1, 2007. A prenup must be in writing and signed by both parties, and it is enforceable without consideration other than the marriage itself. Within those rules, spouses can establish, modify, waive, or eliminate a wide range of property and spousal-support rights, and they can waive the death-time rights described above, including the elective share, the intestate share, and homestead, when the document is drafted correctly.
The statute also marks the boundaries. A premarital agreement cannot fix child support or child custody, parents cannot bargain away the duty to support a child, and a court may override a spousal-support waiver if enforcing it would leave one party eligible for public assistance. Enforceability also turns on voluntariness and disclosure. An agreement can be challenged if it was not signed voluntarily or if it was unconscionable and there was no fair and reasonable disclosure of the other party’s assets and obligations. The practical lesson: full financial disclosure and independent counsel for each party are not formalities, they are what makes the agreement hold up.
Coordination means the prenup and the estate plan are drafted as a matched set:
- The marital agreement defines the waivers. It states clearly which death-time rights the spouse waives, with separate, properly witnessed homestead language.
- The estate plan delivers the promised benefit. Whatever the spouse is to receive instead of statutory rights, a trust interest, a life insurance policy, a specific bequest, is built into the will and trust so the agreement and the dispositive documents describe the same outcome.
- Beneficiary designations are reconciled. Retirement accounts and life insurance pass by designation, not by will, so a forgotten ex-spouse on a 401(k) form can defeat the entire plan. These must be updated to match the agreement.
If you marry first and address planning later, a postnuptial agreement can accomplish much of the same coordination. It is generally harder to negotiate after the wedding, when the leverage and the goodwill have shifted, but it is far better than leaving the statutory defaults in place.
Trusts That Balance a Spouse and the Children
The classic blended-family tool is a marital or “QTIP-style” trust. The surviving spouse receives income, and often a controlled right to principal, for life, and whatever remains at the spouse’s death passes to the first marriage’s children. The spouse is provided for; the children’s remainder is protected from being spent down or redirected to a future partner. Paired with a waiver in the prenup, this structure lets a couple opt out of the elective-share fight and substitute a predictable, private arrangement.
Where there are aging-parent care concerns or long-term-care costs on the horizon, planning may also involve specialized trusts. Asset-protection planning of the kind used in a illustrates how an irrevocable trust can shelter the family home and other assets while still meeting eligibility rules; the mechanics differ by state, but the structuring logic carries over. For a beneficiary who already needs care, a can preserve benefits while supplementing quality of life. A Florida-licensed attorney should adapt these concepts to Chapter 732 and Florida’s Medicaid rules before you rely on them here.
For a fuller picture of how these pieces fit together, see our overview of wills and revocable trusts and what to expect from Florida probate when a plan has gaps.
A Practical Checklist for Adult Children Helping a Parent
If your parent is remarrying, you are not being intrusive by raising estate planning. You are preventing the exact disputes that pit you against a stepparent in probate court years from now. A grounded conversation covers:
- Whether a prenuptial or postnuptial agreement exists, and whether it actually addresses death-time rights, not just divorce.
- Whether the homestead waiver meets the two-witness requirement of Section 732.702.
- Whether the will and trust have been updated since the marriage, and whether they match the agreement.
- Whether retirement and life-insurance beneficiaries still name a former spouse.
- Whether the plan provides for the new spouse in a way that removes any incentive to claim the elective share.
None of this is about distrust. It is about making sure that the people your parent loves are not forced to litigate against each other because Florida’s defaults filled in the blanks. When the documents agree, the plan holds.
Coordinating a prenup with a Florida estate plan is detailed, statute-driven work, and the cost of getting it wrong is paid by the survivors. If your family is navigating a second marriage, a Florida estate planning attorney can review the agreement and the plan together. You can learn more about or contact our office to start the conversation.
This article is general information about Florida law and is not legal advice. Statutes change and individual facts matter; consult a licensed Florida attorney about your situation.
Frequently Asked Questions
Can a prenuptial agreement waive the elective share in Florida?
Yes. Under Florida Statutes Section 61.079 and Chapter 732, a properly drafted prenuptial (or postnuptial) agreement can waive a spouse’s elective share, intestate share, and other death-time rights. To hold up, the agreement should be in writing, signed voluntarily, and supported by fair financial disclosure, ideally with independent counsel for each spouse.
What happens to the homestead in a Florida second marriage if there is no waiver?
By default under Section 732.401, when a decedent is survived by a spouse and descendants, the surviving spouse takes a life estate in the homestead with a vested remainder to the descendants, or may elect a one-half interest as a tenant in common. This often forces a new spouse and stepchildren to co-own the home. A homestead waiver signed before two witnesses under Section 732.702 avoids this.
How much can a surviving spouse claim in Florida if left out of the will?
Florida’s elective share is 30 percent of the elective estate under Section 732.201. The elective estate is broad and includes many non-probate assets such as certain trust property and beneficiary-designated accounts, which is why leaving a new spouse out of an old will rarely protects the children as intended.
Should the prenup and the estate plan be drafted at the same time?
Ideally, yes. The prenup defines which rights the spouse waives, and the will, trust, and beneficiary designations should deliver whatever benefit the spouse receives instead. When the documents are drafted separately, they often contradict each other and create the very litigation the couple hoped to avoid.
Is a postnuptial agreement an option if we are already married?
Yes. A postnuptial agreement can accomplish much of the same coordination as a prenup, including waivers of elective share and homestead rights when drafted correctly. It is usually harder to negotiate after the wedding, but it is far better than relying on Florida’s statutory defaults.
Have a question about your estate?
Talk it through with Russel Morgan — free 30-minute consult.
For more on our Florida practice, see our overview of estate planning in Boca Raton. Morgan Legal Group's affiliated New York office also handles .
