Important Estate Planning Considerations with Second Marriages in Florida

A second marriage begins an exciting new chapter, including building a life together and, in many cases, blending families. Amid the excitement of wedding planning, it is important to make time to meet with an estate planning attorney to discuss how marriage may affect your property rights, estate plan, and intended legacy.

Florida’s Homestead Rights and Inheritances

Florida law gives a surviving spouse significant rights in a deceased spouse’s protected homestead. Those rights depend on several factors, including how the property is titled, whether the deceased spouse is survived by descendants, whether the homestead was validly devised, and whether any spousal rights were waived.

If a deceased spouse owned the protected homestead individually and is survived by both a spouse and descendants, the surviving spouse generally receives a life estate in the homestead, with the remainder passing to the deceased spouse’s descendants. Instead of accepting the life estate, the surviving spouse may elect, within the time and in the manner required by Florida law, to receive an undivided one-half interest in the homestead as a tenant in common. The deceased spouse’s descendants receive the remaining undivided one-half interest.

The same general descent rule applies whether the deceased spouse’s descendants are adults or minors. However, the existence of a minor child may restrict the owner’s ability to devise the homestead during life. Because Florida’s homestead rules are highly dependent on family circumstances and title, the deed and estate planning documents should be reviewed together.

If the home is owned by both spouses as tenants by the entirety, or as joint tenants with rights of survivorship, the deceased spouse’s interest generally passes to the surviving spouse by operation of law. A deed that merely lists both spouses does not always create survivorship rights, so the precise language of the deed matters. Property held as tenants in common does not automatically pass to the surviving co-owner.

Estate Plans and Healthcare Directives

Marriage and divorce can affect estate planning documents in different ways. Under Florida law, dissolution of marriage generally causes provisions in a will affecting a former spouse to become void, unless the will or dissolution judgment provides otherwise. The will is then construed as though the former spouse died when the marriage was dissolved. Florida law also addresses the effect of divorce on certain revocable trusts, beneficiary designations, powers of attorney, and other arrangements, but the governing rules and exceptions vary by document and asset.

Divorce does not automatically create a new estate plan. After remarriage, an existing will or trust may not provide the intended benefits for the new spouse or children. If an asset is not effectively disposed of by a valid will, trust, beneficiary designation, survivorship arrangement, or other transfer mechanism, Florida’s intestacy laws may control its disposition. A surviving spouse may also have statutory rights that apply despite contrary provisions in an estate plan.

Florida uses the term health care surrogate for a person designated to make health care decisions. Unless an advance directive or dissolution order provides otherwise, dissolution or annulment of marriage revokes the designation of a former spouse as health care surrogate. The document’s named alternate surrogate may then become authorized to act according to its terms. Because a health care surrogate is not a personal representative, estate planning documents should use the correct title for each fiduciary role.

A divorce may also terminate a former spouse’s authority as agent under a power of attorney, subject to the document’s terms and applicable law. Reviewing and updating these documents after divorce or remarriage helps avoid unintended appointments and gaps in authority.

Elective Share

Florida law generally permits a surviving spouse to claim an elective share equal to 30 percent of the deceased spouse’s elective estate. The elective estate is a statutory calculation that may include certain probate and nonprobate interests, including some jointly held or transferred property. It does not simply include every asset owned by either spouse.

A spouse may waive some or all statutory spousal rights, including elective share, intestate share, homestead, exempt property, and family allowance rights, through a properly executed written agreement or waiver. Florida imposes specific execution requirements, and agreements signed after marriage require fair disclosure of the other spouse’s estate. A prenuptial or postnuptial agreement should therefore be coordinated carefully with each spouse’s estate plan and asset titling.

Second marriages often require balancing a surviving spouse’s needs with the goal of preserving assets for children or other beneficiaries. A coordinated plan may involve wills, trusts, beneficiary designations, marital agreements, homestead planning, and careful review of how each asset is titled. No single document should be considered in isolation.

Huth, Pratt & Milhauser is a Florida law firm concentrating in wills, trusts, estates, probate, and guardianship, including planning, administration, and litigation. Our attorneys and staff provide knowledgeable and attentive legal services tailored to each client’s circumstances. We serve clients throughout Florida from our Boca Raton office.

Huth, Pratt & Milhauser appreciates your continued support and values the professional relationships we have built within our community. We are grateful for the opportunity to work with you and look forward to continuing our relationship in the future.

Protect Your Legacy

We encourage you to periodically review your estate plan. During a consultation, an attorney can discuss your current plan, any relevant changes in the law, and updates in your personal circumstances that may warrant revisions.