A second marriage can be an exciting new beginning, but it can also create unique Estate Planning issues. When either spouse has children from a prior relationship, owns significant assets, or has an existing estate plan, marriage can affect who inherits property, who makes medical decisions, and what rights a surviving spouse may have.

Florida law provides important protections for surviving spouses, particularly regarding homestead and elective share rights. Careful planning before or after remarriage can help balance the needs of a surviving spouse with the desire to preserve assets for children and other beneficiaries.

Florida Homestead: A Major Consideration

Florida’s constitutional homestead protections can significantly affect what happens to a primary residence after death.

Generally, when a deceased spouse owns a protected homestead individually and is survived by a spouse and descendants, the surviving spouse generally receives a life estate, with the descendants receiving the remainder. The surviving spouse may generally elect, within the applicable statutory period and procedure, to take an undivided one-half interest as a tenant in common instead.

How a homestead is titled is also critical. Property owned by spouses as tenants by the entireties or with a valid right of survivorship generally passes automatically to the surviving spouse rather than under the deceased spouse’s Last Will. Property owned as tenants in common is different.

Because Florida homestead law involves constitutional protections and specific statutory rules, the deed, Last Will, marital agreement, and family circumstances should be reviewed together.

Your Last Will & Testament May Not Control Everything

A Last Will is important, but it does not necessarily determine who receives every asset.

Property may pass outside probate through:

Joint ownership with rights of survivorship;
Beneficiary Designations on life insurance and retirement accounts;
Payable-on-death or Transfer-on-death arrangements;
Certain Trusts; and
Other contractual or statutory transfer mechanisms.

Consequently, simply changing a Last Will may not accomplish what you intend. Your Last Will, Beneficiary Designations, Trusts, and property titles should be coordinated.

Florida’s Elective Share

Florida generally gives a surviving spouse the right to claim an elective share equal to 30% of the deceased spouse’s elective estate. The elective estate is a statutory calculation that can include certain probate and nonprobate assets.

This is particularly important in second marriages when one spouse wants to provide for a new spouse while also preserving assets for children from a prior marriage.

Under appropriate circumstances, spouses may waive certain statutory rights, including elective share, intestate rights, homestead rights, exempt property, and family allowance, through a properly executed marital agreement or other legally effective waiver. Prenuptial and Postnuptial Agreements should be prepared and coordinated carefully with the estate plan.

Prenuptial and Postnuptial Agreements

For couples entering a second marriage, a Prenuptial Agreement can be an important part of both marital and estate planning. It can clarify what property will remain separate, how assets and debts will be treated during the marriage, and what each spouse will receive-or not receive-upon death or divorce. This can be especially important when either spouse has children from a prior marriage and wants to preserve assets for those children.

A Postnuptial Agreement can accomplish many of the same objectives after the couple is already married. It may be appropriate when circumstances change during the marriage, such as receiving an inheritance, acquiring significant assets, starting a business, or deciding to revise how property will ultimately pass to children or a surviving spouse.

Under Florida law, spouses may generally waive certain rights to each other’s property and estates through a properly executed written agreement. These rights can include the elective share, intestate share, pretermitted spouse rights, homestead rights, exempt property, and family allowance. Florida law also requires fair disclosure of each spouse’s estate when the agreement is executed after marriage.

A Prenuptial or Postnuptial Agreement, however, should not be viewed as a substitute for a comprehensive estate plan. The agreement should be coordinated with Last Wills, Trusts, Beneficiary Designations, joint ownership, and other estate-planning documents so that the couple’s overall plan works together and reflects their actual intentions. Florida law specifically recognizes that a spouse may be provided for-or waive rights-through a Prenuptial or Postnuptial Agreement.

For second marriages, careful coordination of the marital agreement and estate plan can help avoid misunderstandings, protect children from a prior marriage, provide for a surviving spouse, and reduce the likelihood of costly disputes after death.

Update Powers of Attorney and Health Care Documents

Remarriage and divorce are also important opportunities to review your Durable Power of Attorney, Designation of Health Care Surrogate, Living Will, and other Advance Directives.

You should clearly identify who you want to make financial and medical decisions if you become incapacitated. Florida law contains specific rules concerning the effect of divorce or dissolution on certain appointments, but relying on automatic statutory changes can create uncertainty. Updating your documents after a divorce or remarriage can help avoid unintended appointments or disputes.

Planning for Children From a Prior Marriage

One of the most common concerns in a second marriage is:

“How can I provide for my spouse while also making sure my children eventually receive what I want them to have?”

There may be several approaches, depending on the family’s circumstances. These can include carefully drafted Trusts, life estates, Beneficiary Designations, marital agreements, and coordinated Last Wills. A Trust, for example, may allow a surviving spouse to receive income or other benefits during his or her lifetime while preserving designated assets for children after the surviving spouse’s death.

There is no single solution that works for every blended family.

The Bottom Line

A second marriage is more than a change in marital status, it can substantially affect your Florida estate plan, homestead, inheritance rights, Beneficiary Designations, Powers of Attorney, and health care decisions.

Before or shortly after remarriage, consider having an experienced Florida estate-planning attorney review:

Your existing Last Will & Testament and Trusts;
Homestead and other real estate deeds;
Retirement and life-insurance beneficiaries;
Joint accounts and survivorship arrangements;
Prenuptial or Postnuptial Agreements;
Durable Powers of Attorney;
Health Care Surrogate and Living Will documents; and
Your overall plan for your spouse and children.

Good estate planning for a second marriage is about more than dividing assets. It is about protecting the people you love while making your intentions clear under Florida law.

Disclaimer: This article is provided for general educational purposes only and does not constitute legal advice. Florida estate-planning and homestead laws are highly fact-specific. You should consult a qualified Florida estate-planning attorney regarding your individual circumstances.