No two rules trip up blended families more than Florida’s homestead protections and the elective share. Both give a surviving spouse rights that can override your will. If you are remarried and want to provide for both your spouse and your children from a prior relationship, you have to plan with these rules front and center.
The Florida Elective Share
Under section 732.2065 of the Florida Statutes, a surviving spouse may claim an elective share equal to 30 percent of the elective estate. The elective estate is broad. It reaches beyond probate assets to include many revocable trust assets, certain jointly held property, payable-on-death accounts, and some lifetime transfers. In a second marriage, this means you cannot simply leave everything to your children and assume a will alone will hold. Your spouse can elect against the plan and claim their 30 percent.
How the Elective Share Affects Blended Plans
Because the elective share is calculated on the elective estate, structuring assets carefully matters. A marital trust may satisfy part of the share. We model how the 30 percent calculation interacts with your trust, accounts, and home so there are no surprises. Where appropriate, a prenuptial or postnuptial agreement in which a spouse waives the elective share gives you the freedom to direct more to your children.
Florida Homestead Protection
The Florida Constitution protects the homestead, your primary residence, in three ways: from creditors, from certain taxes, and through restrictions on how it passes at death. The devise restriction is the one that surprises blended families. If you are survived by a spouse or a minor child, you generally cannot freely leave your homestead to anyone else.
What Happens to the Home With a Surviving Spouse
If you leave a spouse but no minor child, and you try to devise the homestead to someone other than your spouse, Florida law steps in. The surviving spouse typically receives a life estate in the home with the remainder to your descendants, or the spouse may instead elect to take a one-half tenancy in common interest. That election can dramatically change who ends up owning the house. For a second spouse and grown children, this is a frequent flashpoint, and one we plan for directly.
Planning Tools That Help
A Lady Bird deed, also called an enhanced life estate deed, can let you keep control of the homestead during life while passing it at death outside probate, subject to homestead and spousal rules. A marital agreement can resolve homestead waiver questions if done properly. And clear documentation prevents the kind of probate litigation that pits a stepparent against stepchildren.
Why Coordination Matters
Homestead and elective share rules interact with your will, trust, and deeds. Changing one without the others can break the plan. We look at the whole picture so your spouse is protected and your children are not unintentionally cut out, or unintentionally left in conflict.
Consult a Florida attorney: These rules are nuanced and outcomes turn on specific facts. This page is general information only. Please consult a licensed Florida attorney before relying on it.
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