Planning for a second marriage in Florida means coordinating your prenuptial agreement with your estate plan so that your new spouse and your children from a prior relationship are both provided for under state law. In Florida, a properly drafted prenup can waive the surviving spouse’s elective share, homestead, and other statutory rights that would otherwise override your will or trust. Done well, the two documents work as one plan; done in isolation, they contradict each other and end up in probate court.
We see this constantly with the retirees and snowbirds who move to Miami later in life. You have built a comfortable estate over decades. You have adult children, maybe grandchildren, and assets that predate this relationship. Now you are remarrying someone you love and want to protect, without disinheriting the family you raised. Florida law does not make that automatic. It actually fights against it unless you plan deliberately.
Why Second Marriages Need Different Estate Planning in Florida
A first marriage and a second marriage look nothing alike on paper. In a long first marriage, spouses usually want everything to pass to each other, then to shared children. The default rules of Florida intestacy and the standard “I love you” will line up neatly with that wish.
A second marriage breaks that symmetry. You now have at least two groups with competing interests: a surviving spouse who needs security, and children from before this marriage who expect to inherit what you spent a lifetime building. Florida’s protective statutes are written to favor the surviving spouse. If you do nothing, your new spouse can claim a large share of your estate, sometimes far more than you intended, and your children can be left fighting over what remains.
The classic trap is the simple beneficiary designation. You name your new spouse on a brokerage account or a home title “to keep it easy,” your spouse inherits outright, and on their death the money flows to their children, not yours. Nothing illegal happened. Your children simply received nothing.
The Surviving Spouse Rights You Cannot Ignore
Before you can plan around Florida’s spousal protections, you need to know what they are. These are not boilerplate. They are powerful rights baked into the Florida Statutes, and a will alone does not defeat them.
The Elective Share
Florida grants a surviving spouse an “elective share” equal to 30% of the deceased spouse’s elective estate. This is set out in Florida Statutes Chapter 732, Part II. The elective estate is broad. It reaches beyond your probate assets to include things like revocable trust property, certain joint accounts, pay-on-death accounts, and assets you transferred within a year of death. You cannot quietly disinherit a spouse by moving everything into a trust. The statute follows the money.
This is exactly why a prenup matters. The elective share can be waived, but only through a valid written agreement that meets Florida’s requirements.
Florida Homestead Protection
Homestead is its own animal in Florida, and it surprises almost everyone. Under Article X, Section 4 of the Florida Constitution and Florida Statutes Section 732.401, if you are survived by a spouse and you own a homestead, you cannot freely leave that home to your children in your will. The default outcome gives your surviving spouse a life estate, with the remainder to your descendants, or, if the spouse elects, an undivided one-half interest as tenants in common.
For a snowbird who bought a Miami condo before the marriage and assumed it would pass to the kids, this is a genuine shock. Homestead rights can also be waived in a prenuptial or postnuptial agreement, but the waiver has to be done correctly to hold up.
The Pretermitted Spouse and Other Defaults
Florida also protects a spouse you married after signing your will. Under Florida Statutes Section 732.301, a spouse omitted from a will executed before the marriage may receive an intestate share, as if you had died without a will, unless a prenup waives it, the will contemplates the marriage, or the will shows you intended to leave them out. On top of that, a surviving spouse may claim a family allowance, exempt property, and a share of the homestead. These rights stack.
- Elective share — 30% of the broadly defined elective estate (Ch. 732, Part II).
- Homestead rights — life estate or one-half interest in the protected residence (Art. X, Sec. 4; Sec. 732.401).
- Pretermitted spouse share — an intestate share if you married after signing your will (Sec. 732.301).
- Family allowance — support paid during administration, up to the statutory cap (Sec. 732.403).
- Exempt property — certain household furnishings and vehicles set aside for the spouse (Sec. 732.402).
How a Florida Prenuptial Agreement Coordinates With Your Estate Plan
A prenup is the gatekeeper. It is the document that decides which of those statutory rights survive and which are waived, freeing your will and trust to distribute the rest the way you actually want. In Florida, prenuptial agreements are governed by the Uniform Premarital Agreement Act, Florida Statutes Section 61.079. That statute lets couples agree in advance on property rights, spousal support, and the disposition of assets at death.
The coordination problem is simple to state and easy to get wrong. Your prenup might waive the elective share, but if your will and trust then leave your spouse nothing and you never funded the support you promised, you have a document that protects your children at the cost of leaving your spouse exposed and resentful, or worse, litigating. The goal is not to strip the spouse of everything. The goal is to replace the unpredictable statutory rights with a defined, agreed package you control.
A well-coordinated plan typically does three things at once:
- Waives the elective share, homestead, pretermitted spouse, and family allowance rights in the prenup, in clear, specific language.
- Replaces them with a defined benefit, such as a life estate in the home, a lump sum, or an income stream from a trust, so the spouse is genuinely provided for.
- Implements that promise through the will, revocable trust, and beneficiary designations, so the documents say the same thing.
For families with significant assets or long-term care concerns, the trust layer also opens the door to planning that a simple will cannot reach. Strategies like a can shelter assets while still naming a spouse and children as intended beneficiaries, though the rules differ by state and require careful timing.
The QTIP Trust: Providing for a Spouse Without Disinheriting Children
The single most useful tool in second-marriage planning is the QTIP trust, short for Qualified Terminable Interest Property trust. It solves the central tension directly.
Here is how it works in practice. You leave assets in a trust rather than outright. Your surviving spouse receives all of the income from that trust for life, and often the right to live in the home. They are secure. But when your spouse dies, the remaining principal does not go to their heirs. It goes to the people you named, almost always your children from your first marriage. You provide for your spouse and protect your bloodline in the same instrument.
A QTIP also carries a federal estate tax benefit: property passing to it qualifies for the unlimited marital deduction, which can defer estate tax until the second death. Florida has no separate state estate tax, so for most Florida residents the QTIP’s real value is control and family protection rather than tax savings. The prenup should expressly acknowledge that the QTIP satisfies what the spouse is entitled to receive.
Common Mistakes Snowbirds and Retirees Make
Because so many of our clients split time between Florida and a northern state, the cross-border issues pile up. A few patterns come up again and again.
Assuming Your Northern Documents Still Work
If you signed a will, trust, or prenup up north and then became a Florida resident, do not assume everything carries over cleanly. Florida’s homestead rules in particular have no equivalent in most states. A prenup that validly waived spousal rights in New York may not use the language Florida courts want to see for a homestead waiver. Once you establish Florida domicile, your plan should be reviewed under Florida law.
Leaving Beneficiary Designations on Autopilot
Retirement accounts, life insurance, and annuities pass by beneficiary designation, completely outside your will. We routinely meet clients whose prenup and trust carefully protect their children, while a decade-old IRA still names a prior spouse or names the new spouse outright. The designation wins. Every account must be reconciled with the plan.
Mixing Separate and Marital Property
Assets you brought into the marriage can lose their “separate” character if you commingle them, for example by adding your spouse to the deed or depositing inheritance into a joint account. A prenup should define what stays separate, and your day-to-day account practices should match it. Sloppy titling can quietly undo a carefully drafted agreement.
Skipping the Update After Life Changes
A second marriage is itself a triggering event. So is the birth of a grandchild, the sale of the northern home, or a serious health diagnosis. Estate planning for blended families is not a one-time signing. It is a plan you maintain. If you have not reviewed your will and trust since the wedding, you have a gap.
Getting the Sequence Right
Order matters. The cleanest approach is to negotiate and sign the prenuptial agreement before the marriage, with full financial disclosure on both sides, each party represented by independent counsel. Full disclosure and the chance to consult a lawyer are the facts that make a Florida prenup hard to overturn later.
Once the prenup is in place, the estate plan is built to match it. The will, the revocable trust, any QTIP or marital trust, the deed to the homestead, and every beneficiary designation should reflect the same agreement. When a court later compares the documents, they should tell one consistent story. That consistency is what keeps your family out of litigation.
If you missed the prenup window and are already married, you are not out of options. A postnuptial agreement can accomplish much of the same coordination after the wedding, though it is scrutinized more closely. The sooner you address it, the stronger your plan.
Work With Counsel Who Handles Both Sides of the Plan
Second-marriage planning fails when the prenup lawyer and the estate planning lawyer never speak to each other. The strongest plans treat the agreement and the estate documents as a single integrated project. Our firm builds plans for blended families across Miami and South Florida, and works alongside and elder law colleagues to cover every angle, from homestead to long-term care.
For clients with assets or family in the Northeast, coordinated counsel matters even more. The team at regularly partners on multi-state estates so that your Florida plan and your northern interests do not work against each other.
If you are remarrying, recently married, or relocating to Florida with an existing plan, the time to coordinate is now, while you can choose the outcome instead of leaving it to a statute. Schedule a consultation to review your prenuptial agreement and estate plan together.
This article is general legal information, not legal advice. Florida statutes and exemption figures change, and your situation deserves individualized counsel from a licensed Florida attorney.
Frequently Asked Questions
Can a prenuptial agreement waive a spouse's elective share in Florida?
Yes. Under the Florida Uniform Premarital Agreement Act (Florida Statutes Section 61.079), spouses can agree in advance to waive the 30% elective share provided by Chapter 732, Part II. The waiver must be in a valid written agreement, and full financial disclosure plus the opportunity for independent counsel make it far more likely to hold up if challenged.
Does my prenup also waive Florida homestead rights?
Not automatically. Florida homestead protection under Article X, Section 4 of the state Constitution and Section 732.401 is separate, and courts expect specific waiver language. A general waiver of marital rights may not be enough. If you want your spouse to give up homestead rights so your home can pass to your children, the agreement must say so clearly.
What is a QTIP trust and why is it used in second marriages?
A QTIP (Qualified Terminable Interest Property) trust pays all income to your surviving spouse for life, then passes the remaining principal to beneficiaries you choose, typically your children from a prior marriage. It lets you provide for a new spouse without giving them control over where the assets ultimately go, which is the core challenge in blended-family planning.
I signed my will and prenup before moving to Florida. Are they still valid?
They may be, but you should not assume so. Florida’s homestead and elective share rules differ from most other states, and a waiver drafted elsewhere might not use the language Florida courts require. Once you establish Florida residency, have a Florida attorney review your prenup, will, trust, and beneficiary designations together.
What happens if I do nothing and just rely on my will?
Florida’s spousal protections can override your will. A surviving spouse may claim the 30% elective share, homestead rights, a family allowance, exempt property, and, if you married after signing the will, a pretermitted spouse share under Section 732.301. Without a prenup and coordinated plan, your new spouse could receive far more than you intended and your children far less.
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