Planning for a second marriage in Florida means coordinating a prenuptial agreement with your estate plan so that your new spouse and your children from a prior relationship are both protected, rather than left to fight over the same assets. The core challenge is that Florida law gives a surviving spouse strong, often non-waivable rights — to the homestead, to an elective share, and to certain family allowances — that can quietly override the will or trust you thought settled everything. A well-drafted prenuptial agreement under Florida Statutes Chapter 61 and a synchronized set of estate documents are what keep those default rules from rewriting your wishes after you’re gone.
I’ve sat across the table from too many adult children who discovered, weeks after a parent’s funeral, that the family home went somewhere they didn’t expect, or that a “stepparent” they barely knew now controlled the bulk of an estate. Almost none of those outcomes were what the deceased actually intended. They were the product of Florida’s default statutes filling a vacuum that careful planning should have filled first.
Why Second Marriages Need Their Own Estate Plan
First marriages tend to align everyone’s interests. Spouses usually want everything to flow to each other and then to shared children. A second marriage scrambles that math. You may have children from a prior marriage, a new spouse who may have her own children, and assets — a Long Island house, a Florida condo, retirement accounts — accumulated long before this relationship began.
The classic trap is the “I love you” will: each spouse leaves everything to the other, trusting the survivor to “do the right thing” for both sets of kids. Once one spouse dies, the survivor owes no legal duty to the deceased spouse’s children. The survivor can rewrite the will, remarry, or spend the entire estate. Your children are left with a promise and no enforcement mechanism.
For owners whose wealth is concentrated in real estate and a homestead, the stakes are higher still. The house is usually the single largest asset, and Florida treats homestead differently from almost everything else you own.
Florida Homestead: The Rule That Surprises Everyone
Florida’s homestead protection is generous, but it is also a constraint. Article X, Section 4 of the Florida Constitution and Florida Statutes Section 732.401 sharply limit how you can leave your homestead if you are survived by a spouse or minor child.
Here is the part that ambushes second-marriage couples: if you are survived by a spouse and you have descendants, you generally cannot devise the homestead freely to those descendants. Under the default rule of Section 732.401, the surviving spouse takes a life estate in the homestead, with the remainder passing to your descendants. Alternatively, the surviving spouse may elect — within a statutory window — to take an undivided one-half interest as a tenant in common instead of the life estate.
Translate that into a real family: you want your Florida home to go to the children from your first marriage. Without planning, your new spouse may end up living in that home for the rest of her life, paying (or not paying) taxes and upkeep, while your children hold a remainder interest they can’t use, sell, or borrow against until she dies. That arrangement breeds litigation. It is one of the most common sources of probate disputes I see.
A prenuptial agreement is the cleanest tool for changing this outcome. A valid spousal waiver of homestead rights — executed with the formalities Florida requires — lets you devise the homestead as you choose. Without that waiver, the constitutional default controls no matter what your will says.
The Elective Share: Why a Will Alone Doesn’t Disinherit a Spouse
Many people assume that if they leave their new spouse out of the will, the spouse gets nothing. In Florida, that is wrong. Florida Statutes Sections 732.201 through 732.2155 give a surviving spouse the right to an elective share equal to 30 percent of the “elective estate.”
Two features make the elective share particularly potent:
- It reaches beyond the probate estate. The elective estate includes many non-probate assets — revocable trust property, certain joint accounts, payable-on-death accounts, and some transfers made during the marriage. You cannot simply move assets into a living trust and assume they’re shielded from the spouse’s claim.
- It is a right, not a request. The surviving spouse files an election within the statutory deadline, and the court enforces it. Your will’s intentions don’t override it.
The elective share exists to prevent spousal disinheritance. For second marriages, that policy goal collides with the equally legitimate goal of protecting children from a prior marriage. The way you resolve that collision is by agreement — a prenuptial or postnuptial waiver — not by hoping the statute won’t apply.
The Pretermitted and Forgotten-Spouse Problems
Florida also protects a spouse you married after signing your will. Under Section 732.301, a spouse who marries the testator after the will is executed — the “pretermitted spouse” — generally receives an intestate share unless the will provides for the spouse, the will discloses an intent not to provide for the spouse, or a valid marital agreement waives the right.
I see this constantly. Someone signs a will during their first marriage or while single, remarries years later, and never updates the document. They die thinking their old will controls. Instead, the new spouse can claim a pretermitted share that the old will never anticipated. Updating your estate plan when you remarry is not optional housekeeping; it is the difference between your plan working and your plan being overridden by statute.
How a Florida Prenuptial Agreement Coordinates With the Estate Plan
A prenuptial agreement is governed primarily by Florida Statutes Section 61.079, the Uniform Premarital Agreement Act as adopted in Florida. Done correctly, it can waive or modify homestead rights, the elective share, the pretermitted-spouse share, family allowance, and intestate succession rights — the entire bundle of spousal protections that would otherwise disrupt your plan.
But a prenup is only as strong as its drafting and execution. Florida courts will set aside an agreement that was:
- Signed without voluntary consent — for example, presented for the first time on the eve of the wedding with no time to review or consult counsel.
- Procured through fraud, duress, or coercion.
- Based on inadequate financial disclosure, where the challenging spouse did not have, and could not reasonably have obtained, fair knowledge of the other’s assets and liabilities — unless that disclosure was knowingly and expressly waived.
The practical lessons are unglamorous but decisive: each party should have independent counsel, full financial disclosure should be attached as schedules, and the agreement should be signed well before the ceremony. A prenup negotiated under wedding-week pressure is a prenup begging to be challenged in probate.
Aligning the Prenup With Trusts and Beneficiary Designations
The agreement and the estate documents have to tell the same story. If your prenup says your spouse waives the elective share but your revocable trust names her as the primary beneficiary of everything, you’ve created ambiguity that a court — and your children — will exploit. Coordination means:
- Drafting the prenup and the estate plan in tandem, ideally with the same planning attorney quarterbacking both.
- Reviewing beneficiary designations on life insurance, IRAs, and 401(k)s, which pass outside the will and trust and are a frequent source of unintended inheritances to ex-spouses or new spouses.
- Using planning vehicles that provide for the surviving spouse during life while preserving principal for your children — a structure that often calms the very fears that drive prenup negotiations.
QTIP Trusts and Other Tools to Provide for Both Families
The most durable second-marriage plans rarely choose between the spouse and the children. They provide for both, in sequence. A QTIP trust (qualified terminable interest property trust) is the workhorse here: the surviving spouse receives all income from the trust for life, and at the spouse’s death the remaining principal passes to your chosen beneficiaries — typically your children from the prior marriage. You decide where the principal ultimately goes; the spouse cannot redirect it.
For families with elder-care concerns, specialized planning may layer in as well. Couples sometimes need to think about long-term care costs without exposing the estate to spend-down. Strategies such as a can preserve assets for the next generation when planned far enough in advance, and tools like a help individuals qualify for care benefits while still using their income for living expenses. Because rules differ sharply between New York and Florida, any cross-state plan should be reviewed by counsel licensed where the assets and the person reside.
For the Florida side of a blended-family plan — homestead waivers, QTIP funding, and elective-share coordination under Florida law — working with a Florida-licensed team for estate planning matters, because homestead and elective-share doctrines are state-specific and unforgiving of out-of-state assumptions.
A Practical Sequence for Coordinating It All
When clients come to me before a second marriage, I walk them through roughly this order of operations:
- Inventory and disclose. Build a complete, honest schedule of assets and debts for both parties. This protects the prenup and clarifies the planning.
- Negotiate the prenup early, with separate lawyers. Decide which spousal rights are waived, modified, or preserved — homestead, elective share, pretermitted share, family allowance.
- Draft the estate documents to match. Update the will, revocable trust, and any QTIP or marital trust so they implement the agreement rather than contradict it.
- Reconcile non-probate transfers. Re-title accounts and update beneficiary designations so they don’t quietly defeat the plan.
- Plan for probate and incapacity. Powers of attorney and health-care designations should name the right person — which, in a blended family, is a question worth deliberate thought.
- Revisit after major changes. New child, new property, a move between New York and Florida, or a sizeable inheritance all warrant a fresh review.
Second-marriage planning is not about distrust. It is about removing the situations that turn grief into litigation. When the documents are coordinated, the surviving spouse knows she is provided for, the children know the family home and legacy are protected, and no one is left interpreting an ambiguous promise after the person who made it can no longer explain it.
If you are remarrying, own a homestead, or already have an out-of-date will from a prior marriage, the time to coordinate is before the wedding — not after a death forces a court to do it for you. Reach out to discuss how a prenuptial agreement and a Florida-aware estate plan can work together for your blended family.
Frequently Asked Questions
Can a prenuptial agreement waive my spouse's right to my Florida home?
Yes. Florida’s homestead devise restrictions in Article X, Section 4 of the state constitution and Section 732.401 normally limit how you can leave the homestead when survived by a spouse. A valid prenuptial agreement under Section 61.079, executed with the required formalities and full disclosure, can include a spousal waiver of homestead rights so you can devise the home as you choose.
Does leaving my new spouse out of my will actually disinherit them in Florida?
No. Florida gives a surviving spouse an elective share of 30 percent of the elective estate under Sections 732.201 through 732.2155, and that estate reaches many non-probate assets such as revocable trusts and certain joint or payable-on-death accounts. A will alone cannot defeat it. Only a valid marital agreement waiving the elective share can.
What is a QTIP trust and why is it useful in a second marriage?
A QTIP (qualified terminable interest property) trust pays all income to the surviving spouse for life, then passes the remaining principal to beneficiaries you choose, typically your children from a prior marriage. It provides for your spouse while guaranteeing the principal ultimately reaches your children, so neither family is forced to choose between them.
I signed my will before this marriage. Is it still valid in Florida?
The will may still be valid, but Florida’s pretermitted-spouse rule in Section 732.301 can give a spouse you married after signing the will an intestate share unless the will provided for the spouse, showed intent not to, or a marital agreement waived the right. Anyone who remarries should update their estate plan promptly.
Should the same attorney handle both the prenup and the estate plan?
Each spouse should have independent counsel for negotiating and signing the prenuptial agreement to protect its enforceability. For the estate documents, having one planning attorney coordinate the will, trust, and beneficiary designations against the signed agreement helps ensure the documents reinforce rather than contradict each other.
Have a question about your estate?
Talk it through with Russel Morgan — free 30-minute consult.