Planning for a second marriage in Florida means coordinating a prenuptial agreement with your will, trust, beneficiary designations, and—above all—your homestead, so that the spouse you love and the children from a prior relationship are both provided for without litigation. Because Florida law gives a surviving spouse powerful default rights (an elective share, homestead protections, and intestate inheritance), those rights will override a stale estate plan unless they are intentionally addressed, usually through a valid prenuptial or postnuptial agreement. Done correctly, the prenup and the estate plan speak with one voice; done carelessly, they contradict each other and hand your family a probate fight.
This is one of the most common—and most emotionally charged—situations I see as a Florida estate planning attorney. A widow or widower in their late fifties remarries. Each spouse owns a home, has adult children, maybe a retirement account or two, and a sincere wish to “keep things fair.” Fair, in Florida, is not the same as automatic. Let’s walk through how the pieces actually fit together.
Why Florida second marriages need special planning
Florida is unusually protective of surviving spouses, and that protection is the heart of the problem in blended families. If you simply remarry and do nothing, the law assumes your new spouse should inherit a large share of your estate—often at the direct expense of your children from a prior marriage.
Three Florida doctrines drive nearly every second-marriage plan:
- The elective share. Under Florida Statutes Chapter 732, a surviving spouse may claim 30% of the deceased spouse’s “elective estate,” which is a broad concept reaching well beyond the probate estate—it can include certain trust assets, jointly held property, payable-on-death accounts, and more. A spouse can elect to take this 30% even if your will leaves them nothing.
- Homestead protection. Florida’s constitutional homestead provisions and Florida Statutes §732.401 restrict how you can leave your primary residence when you are survived by a spouse or minor child. You cannot freely will your homestead away from a spouse.
- Pretermitted and intestate rights. If you marry after signing your will and don’t update it, your new spouse may qualify as a “pretermitted spouse” under §732.301 and take an intestate share as though there were no will at all.
None of these are footnotes. Each one can quietly rewrite your intentions. The prenuptial agreement is the primary legal tool Florida gives couples to modify or waive these defaults by mutual consent.
What a Florida prenuptial agreement can—and cannot—do
A prenuptial agreement (signed before the wedding) and its sibling, the postnuptial agreement (signed after), are governed largely by Florida’s Uniform Premarital Agreement Act, found at Florida Statutes Chapter 61. Within wide limits, spouses can use these contracts to decide in advance how property is characterized, what each will and won’t inherit, and which statutory rights each is willing to waive.
Rights a couple can waive by agreement
- The elective share (the 30% claim), in whole or in part.
- Homestead devise and descent protections—but only with specific, knowing language; a generic “I waive all marital rights” clause is frequently held insufficient to waive homestead.
- Family allowance, exempt property, and the right to serve as personal representative.
- Intestate and pretermitted-spouse shares.
Where prenups run into limits
A prenup cannot defeat a minor child’s homestead rights, and it cannot waive a child’s interests at all—children are not parties to the contract. It also won’t survive a validity challenge if it was procured by fraud, duress, coercion, or signed without fair and reasonable financial disclosure. Florida courts scrutinize the circumstances of signing: a document presented the night before the wedding, with no time to consult counsel, is vulnerable. Two practical safeguards matter enormously—full financial disclosure and independent legal counsel for each spouse. I treat both as non-negotiable.
The homestead trap that catches second marriages
If you remember one thing, make it this: in Florida, you usually cannot leave your home to your kids if you’re married and living in it. Section 732.401 says that when a person dies owning homestead and is survived by a spouse, the surviving spouse takes a life estate in the home, with the remainder passing to the decedent’s descendants. Alternatively, the surviving spouse may elect, within six months, to take a 50% undivided tenant-in-common interest instead of the life estate.
Picture the consequences in a blended family. You want your daughter to eventually own the house you bought before the marriage. You die. Your new spouse gets a life estate—the legal right to live there, and the obligation to pay taxes and upkeep—for the rest of their life. Your daughter owns a remainder she cannot occupy, sell, or borrow against until your spouse dies. Both sides feel cheated, and the carrying costs of the home become a battleground. This outcome is extraordinarily common and almost always unintended.
There are clean ways to avoid it, and they depend on coordination, not luck:
- Spousal waiver of homestead rights in a properly drafted prenuptial or postnuptial agreement, with homestead named explicitly. This is the cornerstone.
- A deed structured during life—for example, conveying the homestead into a trust or to children with a reserved life estate—executed with the spouse’s written joinder or after a valid waiver.
- Buying a new marital home together as tenants by the entirety, while each spouse’s pre-marriage property is kept separate and devised to their own children.
Because homestead also affects creditor protection and the Save Our Homes property-tax cap, restructuring it deserves careful, Florida-specific advice. If you also own real estate or have probate questions, our overview of Florida probate explains how these assets actually move after death.
Coordinating the prenup with wills, trusts, and beneficiary designations
A prenuptial agreement is a promise; your estate plan is how you keep it. The two documents must be drafted as a matched set. I’ve reviewed too many files where a beautifully negotiated prenup waived the elective share, but the client’s will still said “I leave everything to my spouse”—or, worse, named an ex-spouse as the IRA beneficiary a decade earlier.
The instruments that have to align
- Your will (see our wills overview), which should reference the agreement and devise separate property consistently with it.
- Revocable and irrevocable trusts, which are often the workhorse of blended-family planning.
- Beneficiary designations on retirement accounts, life insurance, and annuities—these pass outside the will and are routinely forgotten.
- Pay-on-death and transfer-on-death registrations on bank and brokerage accounts.
- Property titling: joint tenancy and tenancy by the entirety override your will entirely.
The QTIP trust: provide for a spouse, protect the children
For couples who want the surviving spouse cared for and the children to ultimately inherit, the qualified terminable interest property (QTIP) trust is the classic solution. The surviving spouse receives all income from the trust for life—and often the right to live in a residence held by the trust—but cannot redirect the principal. When the surviving spouse dies, whatever remains passes to the children you named, not to the spouse’s heirs or a future partner. A QTIP can be paired with a prenup’s elective-share waiver so the trust interest is structured as the agreed-upon provision for the spouse. For clients with larger or tax-sensitive estates, lifetime planning vehicles—including specialized trusts like a Medicaid asset protection trust—can complement this structure, and a pooled income trust can help a beneficiary preserve needs-based benefits while still receiving support. These tools are powerful, but they must be matched to your state’s rules and your family’s facts.
Postnuptial agreements: planning after the “I do”
Plenty of couples come to me already married, having never signed a prenup. The remedy is the postnuptial agreement. It can accomplish nearly everything a prenup does—including an elective-share waiver and homestead waiver—provided the same standards of disclosure, fairness, and voluntariness are met. In some respects courts watch postnups even more closely, because spouses already owe each other duties. The good news: it is rarely too late to fix a second-marriage plan, and a postnup plus a coordinated trust can resolve years of avoidance in a single, well-run signing.
A practical sequence I recommend to second-marriage couples
- Inventory everything separately. Each spouse lists assets, debts, and the children they intend to protect. Honesty here is what makes the agreement enforceable.
- Decide the homestead outcome first. It drives the rest. Will the home be shared, kept separate, or sold and replaced?
- Negotiate the agreement with two attorneys. Independent counsel for each spouse is the single best predictor of an agreement that survives challenge.
- Rebuild the estate plan to match. New wills, the appropriate trust (often a QTIP), updated beneficiary designations, and corrected titling—executed together.
- Review after every life event. A new grandchild, a sold property, a relocation across state lines, or a change in the tax law can all knock the plan out of alignment.
Coordination across state lines deserves a special note. Spouses who split time between Florida and the Northeast, or who own property in more than one state, face overlapping rules. Florida homestead and elective-share law will generally control real property located in Florida and the estate of a Florida domiciliary, but out-of-state assets may answer to other states’ statutes. This is where working with a firm that handles multi-state estate planning pays off—our Florida team coordinates estate planning in tandem with northern counsel so the documents don’t contradict each other across jurisdictions.
Common mistakes I see—and how to avoid them
- Relying on a generic prenup template that never names homestead. Florida courts have repeatedly refused to read homestead waivers into boilerplate language.
- Signing under time pressure. A prenup delivered days before the wedding invites a duress argument. Build in weeks, not hours.
- Forgetting beneficiary forms. A 401(k) that still names an ex-spouse defeats even the most careful will.
- Assuming joint accounts are “fair.” Adding a new spouse to title can unintentionally disinherit your children, because survivorship beats your will.
- Treating the prenup and estate plan as separate projects handled by different people who never talk. They are one plan.
Second marriages are acts of optimism, and the planning should honor that—protecting your spouse without disinheriting your children, and protecting your children without leaving your spouse exposed. In Florida, that balance is achievable, but only with documents that are drafted together and reviewed often. If you’re remarrying or already remarried and your plan predates the relationship, it’s worth a focused conversation. You can contact our office to start coordinating your prenuptial agreement and estate plan as a single strategy.
This article is general information for Florida residents and is not legal advice. Statutory rights and thresholds change; consult a licensed Florida estate planning attorney about your specific situation.
Frequently Asked Questions
Can a Florida prenuptial agreement waive a spouse's right to the homestead?
Yes, but only with specific, knowing language. A generic clause waiving ‘all marital rights’ is often held insufficient to waive Florida homestead protections under Section 732.401. The agreement should name homestead explicitly, be supported by full financial disclosure, and ideally be signed with independent counsel for each spouse. A prenup still cannot defeat the homestead rights of a minor child.
What happens to my house if I remarry in Florida and do nothing?
If you die owning your homestead while married, your surviving spouse takes a life estate (the right to live there for life), with the remainder passing to your descendants—or the spouse may elect a 50% tenant-in-common interest within six months. This frequently disinherits children from a prior marriage from full ownership and creates conflict over taxes and upkeep, which is why second-marriage couples address homestead in a prenup or postnup.
Is it too late to plan if we're already married without a prenup?
No. A postnuptial agreement signed after marriage can accomplish nearly everything a prenup can, including waiving the elective share and homestead rights, as long as there is fair financial disclosure, the agreement is voluntary, and it is not the product of fraud or duress. Pairing a postnup with a coordinated trust can resolve a long-avoided second-marriage plan in one signing.
How does a QTIP trust help blended families in Florida?
A qualified terminable interest property (QTIP) trust pays the surviving spouse all income for life—and often a place to live—while ensuring the remaining principal passes to the children you choose, not to the spouse’s heirs or a future partner. It lets you provide for your spouse and protect your children simultaneously, and it can be coordinated with a prenuptial agreement’s elective-share waiver.
What is the elective share, and can it be waived?
Under Florida Statutes Chapter 732, a surviving spouse may claim 30% of the deceased spouse’s broadly defined ‘elective estate,’ even if the will leaves them nothing. The elective share can be waived, in whole or in part, through a valid prenuptial or postnuptial agreement that meets Florida’s disclosure and fairness standards under Chapter 61.
