Planning for a second marriage in Florida means coordinating your prenuptial agreement with your estate plan so that the two documents speak with one voice rather than contradicting each other. In practice, that involves using a prenuptial agreement to waive or define spousal rights under Florida law, then drafting wills, trusts, and beneficiary designations that honor those terms while still providing for a new spouse and for children from a prior relationship. When the prenup and the estate plan are built together, a blended family avoids the litigation that so often follows a second marriage.
I have sat across the table from too many grown children who learned, only after a parent’s funeral, that the family home or the brokerage account they assumed they would inherit now belonged to a stepparent they barely knew. Almost always, the problem was not malice. It was a prenuptial agreement and an estate plan that were drafted by different lawyers, at different times, with no one checking whether they actually fit together. This article walks through how to keep that from happening in Palm Beach County and across Florida.
Why Second Marriages Need Specialized Estate Planning in Florida
A first marriage and a second marriage are not the same legal animal. In a first marriage, spouses usually want everything to flow to each other and then to their shared children. The interests line up. In a second marriage, especially one involving a blended family, the surviving spouse and the deceased spouse’s children are often in direct financial tension. Money that goes to the spouse may never reach the children, and vice versa.
Florida law compounds this tension because the state gives a surviving spouse rights that are remarkably difficult to disinherit. You cannot simply write your new spouse out of your will and assume that settles the matter. Florida hands a surviving spouse several independent claims against your estate, and each one has to be addressed deliberately. A prenuptial agreement is the cleanest tool for doing exactly that.
The Spousal Rights You Are Actually Planning Around
Before you can coordinate anything, you need to know what a surviving spouse is entitled to under Florida law absent an agreement. The major rights are:
- The elective share. Under Florida Statutes section 732.2065, a surviving spouse can elect to take 30% of the “elective estate,” a broad pool that reaches well beyond the probate estate to include certain trusts, jointly held property, and accounts. This right exists even if your will leaves the spouse nothing.
- Homestead protection. The Florida Constitution, Article X, section 4, and Florida Statutes section 732.401 sharply restrict how you can devise homestead property when you are survived by a spouse. A surviving spouse may receive a life estate in the homestead, or elect a one-half tenancy in common, regardless of what your will says.
- The intestate share. If you die without a valid will, Florida Statutes section 732.102 controls. When either spouse has children who are not the children of both, the surviving spouse takes only one-half of the intestate estate, with the rest passing to descendants.
- The pretermitted (omitted) spouse share. Under Florida Statutes section 732.301, if you marry after executing your will and the will neither provides for nor intentionally omits the new spouse, that spouse may receive an intestate share as though you had died without a will.
- Family allowance and exempt property. Sections 732.402 and 732.403 give a surviving spouse exempt property and a family allowance of up to $18,000 during administration.
Each of these can be waived. Florida Statutes section 732.702 expressly allows a spouse, or soon-to-be spouse, to waive the elective share, homestead devise restrictions, intestate share, pretermitted share, family allowance, and exempt property through a written contract signed in the presence of two witnesses. That waiver is the bridge between your marriage and your estate plan.
How a Florida Prenuptial Agreement Sets Up the Estate Plan
Prenuptial agreements signed in Florida are governed primarily by the Uniform Premarital Agreement Act, codified at Florida Statutes section 61.079. The Act lets engaged couples contract about property rights, spousal support, and the disposition of property at death. For estate planning purposes, the prenup does two jobs: it tells you which spousal rights survive the marriage, and it commits each spouse to certain affirmative gifts.
Think of it this way. A well-drafted prenup does not simply say “we each keep our own stuff.” That is the part everyone remembers. The more important part, for a blended family, is the language that says what each spouse will provide for the other at death, and what spousal rights are waived in exchange. Maybe the husband agrees to leave his wife a life estate in the condominium plus $400,000 in a trust, and in return she waives her elective share and her homestead rights. The estate plan then has to actually deliver that $400,000 trust and that life estate, or the waiver may be challenged as unsupported.
What Makes a Prenup Enforceable in Florida
A prenuptial agreement is only as good as its enforceability. Florida courts will set one aside if it was not entered into voluntarily, or if it was the product of fraud, duress, coercion, or overreaching. Equally important, under section 61.079 a spouse can attack an agreement for lack of fair and reasonable financial disclosure, unless that disclosure was knowingly and expressly waived in writing. To give your agreement the best chance of surviving a challenge:
- Exchange complete, written financial disclosures, attached as schedules to the agreement.
- Give each party independent counsel, and enough time before the wedding that no one can later claim a shotgun signing.
- Sign with the formalities required for a valid waiver of spousal rights, including two witnesses for the death-related provisions.
- Avoid terms so one-sided that a judge would call them unconscionable.
A prenup signed three days before the ceremony, with no disclosure and no lawyer for the less-wealthy spouse, is an invitation to litigation. A prenup signed two months out, with full schedules and separate counsel, tends to hold.
Coordinating the Prenup With Your Will and Trust
This is where most blended-family plans fall apart, so it deserves its own discussion. A prenuptial agreement creates contractual obligations. Your will and revocable trust carry them out. If the documents disagree, you have a problem that lands in front of a probate judge.
Consider a common failure. A husband’s prenup promises his wife a marital trust funded with $500,000. Years later he updates his revocable trust but, working from an old template, leaves everything to his children and forgets the marital trust entirely. At his death the wife has a breach-of-contract claim against the estate and the option to claim her elective share if the waiver was conditioned on a promise that was never kept. The children inherit a lawsuit instead of an inheritance.
The fix is straightforward in concept and demands discipline in execution. Whenever the prenup is signed, the estate plan should be reviewed in the same engagement, and whenever the estate plan is amended, someone should pull the prenup back out and confirm the new version still satisfies every promise. For families with significant assets, this is the same coordination problem that drives sophisticated planning in larger markets; the elder law and trust attorneys at Morgan Legal’s New York office handle these blended-family structures daily, and the principles travel directly to Florida.
Tools That Do the Coordinating Work
Several structures are workhorses for second marriages because they provide for a spouse while protecting children. Among the most useful:
- The QTIP trust. A qualified terminable interest property trust pays all income to the surviving spouse for life, and on the spouse’s death distributes the remaining principal to your children. The spouse is supported; the children’s inheritance is locked in and cannot be redirected to the spouse’s own heirs or a future partner.
- The lifetime revocable trust with separate shares. A revocable living trust can hold the family home and investments, provide a clear lifetime benefit to the spouse, and then close the door so the remainder reaches your descendants on terms you set, not theirs.
- Coordinated beneficiary designations. Life insurance and retirement accounts pass outside the will. A prenup might assign a life insurance policy to the new spouse so the children inherit the home free and clear. Naming the wrong beneficiary, or forgetting to update one, quietly defeats the whole plan.
- Long-term-care and Medicaid planning. A second spouse who needs nursing care can drain assets the prior marriage’s children expected to inherit. Vehicles such as a Medicaid asset protection trust illustrate how families shield property from care costs; Florida’s Medicaid rules differ, but the planning instinct, protecting assets early and deliberately, is identical.
For homestead specifically, Florida couples should plan with care. Because the homestead devise restrictions can override a will, many blended families have the new spouse sign a waiver of homestead rights in the prenup so the residence can pass to the children, or pass through a trust, without the constitutional life-estate default kicking in. Our team’s Florida estate planning attorneys regularly draft these homestead waivers as part of a unified second-marriage package.
Common Mistakes Blended Families Make in Palm Beach County
Patterns repeat. After years of watching second-marriage estates move through probate in Palm Beach and the surrounding counties, the recurring errors are easy to name:
- Relying on joint ownership as the whole plan. Titling the home jointly with a new spouse hands it to that spouse outright at death, cutting out children entirely, no matter what the will says.
- Treating the prenup as a one-time event. The agreement and the estate plan drift apart over a decade of life changes. A document that fit perfectly in 2014 may breach by 2026.
- Ignoring the elective share math. Because the elective estate reaches trusts and non-probate transfers, plans that “look” like they avoid the spouse often do not. The 30% claim under section 732.2065 has long arms.
- Forgetting the homestead. Couples plan every asset except the most valuable one, the home, and the constitutional restrictions then upend the entire distribution.
- Naming the surviving spouse as both trustee and lifetime beneficiary with no remainder protections. This gives the spouse practical control to favor their own heirs over your children.
When to Bring in a Florida Estate Planning Attorney
If you are engaged or recently remarried and either spouse has children from a prior relationship, owns real estate, or holds substantial retirement or business assets, the prenup and estate plan should be built as a single coordinated project. The same is true if you signed a prenup years ago and have never had it reviewed against your current will and trust. A short review now is far cheaper than the contested probate your family would otherwise inherit.
To go deeper on the foundational documents, see our overviews of Florida wills and the Florida probate process, then contact our Palm Beach estate planning team to coordinate your prenuptial agreement and estate plan in one place.
Frequently Asked Questions
Can a prenuptial agreement waive the Florida elective share?
Yes. Under Florida Statutes section 732.702, a spouse or soon-to-be spouse can waive the 30% elective share described in section 732.2065 through a written agreement signed in the presence of two witnesses. A prenuptial agreement is the most common vehicle for this waiver, and it can also waive homestead rights, the intestate share, the pretermitted-spouse share, family allowance, and exempt property.
Does my prenup override my will in Florida?
A prenuptial agreement and a will do different jobs, and conflicts between them cause litigation. The prenup is a contract that defines and waives spousal rights and can obligate each spouse to make certain gifts at death; the will and trust carry those obligations out. If your estate documents fail to deliver what the prenup promised, your estate can face both a breach-of-contract claim and a possible elective-share claim. That is why both should be drafted and reviewed together.
What happens to the family home in a second marriage under Florida law?
Florida homestead protection under Article X, section 4 of the Constitution and Florida Statutes section 732.401 limits how you can leave a homestead when you are survived by a spouse. By default, the spouse may take a life estate or elect a one-half tenancy in common, regardless of your will. To leave the home to your children, many blended families have the spouse waive homestead rights in a prenuptial agreement and use a trust to hold the residence.
How can I provide for my new spouse and still protect my children's inheritance?
A QTIP trust is the classic solution. It pays income to your surviving spouse for life and then distributes the remaining principal to your children, so the spouse is supported but cannot redirect the inheritance to their own heirs. Coordinated beneficiary designations on life insurance and retirement accounts, plus a revocable trust with separate shares, round out the plan.
Is my old prenuptial agreement still valid if I never updated my estate plan?
The prenup may remain valid as a contract, but it can fall out of step with an estate plan that has changed over the years. If your current will and trust no longer satisfy the promises in the prenup, your family could face conflicting claims. Any prenup more than a few years old should be reviewed against your present documents, ideally whenever you amend your estate plan.
For more on our Florida practice, see our overview of estate planning in Palm Beach. Morgan Legal Group's affiliated New York office also handles Medicaid asset protection trusts.