Planning for a second marriage in Florida means coordinating your prenuptial agreement and your estate plan so they say the same thing. A prenup governs what happens at divorce and, when drafted correctly, can waive the spousal rights Florida law would otherwise impose at death—including the elective share and homestead protections. Without that coordination, a new spouse may be legally entitled to a large share of your estate even if your will leaves everything to your children.
I have sat across the table from too many widows, widowers, and adult children who learned this the hard way. A man remarries at sixty-two, signs a “simple” prenup, updates his will to protect the kids from his first marriage, and assumes he is done. He is not. Florida’s homestead and elective-share statutes operate independently of his will, and unless his prenup specifically waived them, his second wife may be able to claim a chunk of the house and the estate that he never intended her to have. Second-marriage planning is where family law and estate law collide, and in Florida the collision is loud.
Why Second Marriages Need a Different Estate Plan
First marriages tend to be financially symmetrical. Two people build assets together, raise children together, and usually want everything to pass to the survivor and then to their shared kids. The law is built around that assumption.
Second marriages break the assumption. By the time most people remarry in their fifties or sixties, they arrive with assets already accumulated, children from a prior relationship, sometimes a home that was paid off long before the new spouse appeared, and often an ex-spouse still in the picture through alimony or support obligations. The goal shifts from “leave it all to my spouse” to something more delicate: provide for the new spouse during their lifetime without disinheriting the children you raised.
That balance does not happen by accident. It requires two documents—a prenuptial agreement and an estate plan—that are drafted in the same room, by attorneys who are reading each other’s work. When they are drafted in isolation, they contradict each other, and Florida’s default rules fill the gaps in ways you did not choose.
The Florida Spousal Rights You Cannot Ignore
Florida grants a surviving spouse a set of statutory protections that exist regardless of what your will or trust says. These are the rights a prenuptial agreement must address head-on. If your prenup is silent on them, they survive the marriage and your death.
The Elective Share (30% of the Elective Estate)
Under Florida Statutes Chapter 732, a surviving spouse who is dissatisfied with what a will leaves them can elect to take 30% of the “elective estate” instead. The elective estate is broad—it reaches far beyond the probate estate to include revocable trust assets, certain jointly held property, pay-on-death accounts, and even some assets transferred within a year of death. The point of the statute is to stop people from disinheriting a spouse by funneling assets around the will.
For a second-marriage homeowner in Boca Raton, this is the headline risk. You can leave your entire estate to your children in your will, and your surviving spouse can still elect to take 30% of nearly everything you owned. The elective share is exactly the kind of right a properly drafted prenup is designed to waive.
Homestead Rights and the Constitutional Restrictions
Florida’s homestead protection, rooted in Article X, Section 4 of the state constitution, is one of the most misunderstood concepts in the state. It does three different things, and people confuse them constantly:
- Creditor protection—your primary residence is largely shielded from creditors.
- Property tax benefits—the homestead exemption and the Save Our Homes assessment cap.
- Restrictions on devise—this is the one that wrecks second-marriage plans.
If you are married and own a Florida homestead, you generally cannot leave it freely by will. If you have a surviving spouse and no minor children, the spouse receives at minimum a life estate in the homestead (or can elect a one-half tenancy-in-common interest under Florida Statutes 732.401). If you have minor children, you cannot devise the homestead at all. This means your plan to leave the Boca Raton house outright to your adult children can be overridden by operation of law—your new spouse gets a life estate, and your children get a remainder interest they cannot touch until the spouse dies or vacates.
For homeowners whose single largest asset is their home, this is the issue that demands attention. A prenuptial agreement can include a homestead waiver, but the waiver language has to be specific and, in many cases, must satisfy the formalities of a deed to be effective. Generic “I waive all rights” language is not always enough.
Family Allowance, Exempt Property, and Pretermitted Spouse Status
Beyond the headline rights, Florida grants a surviving spouse a family allowance, exempt personal property, and—if you marry after signing your will and never update it—the status of a “pretermitted spouse” under Florida Statutes 732.301, which can entitle them to an intestate share as if you had no will. Each of these can be waived in a prenup, but only if the agreement names them. Silence is not waiver.
How a Florida Prenuptial Agreement Coordinates With Your Estate Plan
Florida adopted the Uniform Premarital Agreement Act in Florida Statutes Chapter 61 (specifically 61.079). Under that statute, parties can contract regarding the disposition of property on death, the making of a will or trust, and the rights and obligations of each spouse. In plain terms, a Florida prenup can validly waive the elective share, homestead rights, the family allowance, exempt property, and pretermitted-spouse claims—if it is drafted to do so.
Coordination works like this. The prenup establishes what each spouse waives and what each spouse is promised. The estate plan—your will, your revocable trust, your beneficiary designations—then delivers on those promises. The two documents have to mirror each other. If the prenup says the surviving spouse gets a life estate in the home plus $300,000 from a trust, the trust had better actually contain that provision. I have reviewed prenups that promised a spouse a benefit the estate plan never funded, which is an invitation to litigation.
A common and effective structure for second marriages is the QTIP trust (qualified terminable interest property trust). The new spouse receives income from the trust for life and, where appropriate, access to principal for health and support. When the spouse dies, whatever remains passes to your children—not to the spouse’s children or their next marriage. The QTIP lets you provide for a spouse and protect a bloodline at the same time, and it pairs naturally with a prenup that waives the elective share so the QTIP terms control.
A Practical Sequence for Boca Raton Second-Marriage Planning
Order matters. Doing these steps out of sequence is how contradictions creep in. A workable sequence looks like this:
- Full financial disclosure first. Florida prenups can be set aside for inadequate disclosure of assets. Both parties exchange complete, written financial disclosures before anyone signs.
- Draft the prenup with the death provisions built in. Do not treat the prenup as a divorce-only document. Address the elective share, homestead, family allowance, and exempt property explicitly.
- Independent counsel for each spouse. One attorney cannot represent both parties. Independent representation strengthens enforceability and reduces later claims of coercion.
- Sign the prenup well before the wedding. A document signed the night before the ceremony invites a duress argument. Build in time.
- Rebuild the estate plan to match. New will, revocable trust, QTIP or other marital trust provisions, and updated beneficiary designations on retirement accounts and life insurance.
- Handle the homestead deliberately. Decide whether the new spouse will receive a life estate, be added to title, or waive homestead rights entirely—and document it correctly.
This is also the right moment to think about long-term care exposure. Second marriages often join two people at different stages of health, and a spouse’s future nursing-home costs can drain assets meant for children. Planning tools used for asset protection in this context—such as a in jurisdictions that recognize them, or a for a disabled or elderly spouse—illustrate how marital and long-term-care planning intersect. The specifics differ by state, so Florida residents should plan with Florida rules in mind, but the strategic principle is universal: a prenup and an estate plan should anticipate care costs, not just inheritance.
Common Mistakes in Florida Second-Marriage Planning
The same errors recur, and most are avoidable:
- Assuming the will controls. It does not, where homestead and elective share are concerned. The will is overridden by statute unless those rights were waived.
- A prenup that is silent on death. Many prenups address only divorce. At death, the unwaived spousal rights spring fully to life.
- Adding the new spouse to the deed casually. Re-titling the homestead into joint ownership or tenancy by the entireties can quietly transfer the property to the survivor and disinherit the children, defeating the whole plan.
- Stale beneficiary designations. A 401(k) or life insurance policy still naming an ex-spouse will pay the ex-spouse, prenup or not. Beneficiary forms override the will.
- Never updating after the wedding. Marrying after signing a will can make the new spouse a pretermitted spouse entitled to an intestate share.
Each of these is a coordination failure—the prenup and the estate plan, or the estate plan and the asset titles, drifting out of alignment. The fix is to treat them as one integrated project, reviewed together and refreshed whenever a major asset, health status, or family circumstance changes.
When to Bring in a Florida Estate Planning Attorney
If you are entering a second marriage, own a home in Boca Raton or anywhere in Palm Beach County, and have children from a prior relationship, you have all three ingredients that make this complex. You should plan before the wedding, not after, and you should have your prenuptial agreement and estate plan drafted in coordination by counsel who understand both bodies of law. Florida’s rules reward families who plan deliberately and punish those who assume the defaults will protect them.
To get the foundational documents right, start with an up-to-date will and understand how the process unfolds after death by reviewing how Florida probate works. When you are ready to map your prenup and estate plan to each other, our team can walk you through the homestead and elective-share decisions specific to your situation—reach out through our contact page to begin.
Frequently Asked Questions
Can a Florida prenuptial agreement waive the elective share and homestead rights?
Yes. Under Florida Statutes 61.079 (the Uniform Premarital Agreement Act) and Chapter 732, a properly drafted prenup can waive the elective share, family allowance, exempt property, pretermitted-spouse status, and homestead rights. The waivers must be specific—generic ‘I waive all rights’ language is not always sufficient, and homestead waivers often must meet deed-level formalities. Each spouse should have independent counsel and full financial disclosure for the agreement to hold up.
What happens to my Florida home if I remarry and leave it to my children in my will?
Your will may not control. Florida’s homestead restrictions on devise (Article X, Section 4 of the constitution and Florida Statutes 732.401) can give your surviving spouse a life estate in the home—or a one-half tenancy-in-common interest if they elect it—even though your will leaves the home to your children. If you have minor children, you cannot devise the homestead at all. A prenup with a valid homestead waiver is the way to preserve your intended plan.
What is the spousal elective share in Florida and how much is it?
The elective share is a surviving spouse’s right to claim 30% of the decedent’s ‘elective estate’ instead of accepting what the will provides. The elective estate is broad—it includes revocable trust assets, certain joint accounts, pay-on-death accounts, and some transfers made within a year of death, not just probate assets. It exists by statute regardless of what your will says, which is why second-marriage plans should address it directly in a prenuptial agreement.
How do a QTIP trust and a prenup work together in a second marriage?
They complement each other. The prenup waives the surviving spouse’s elective share and homestead claims so the estate plan can control distribution. The QTIP (qualified terminable interest property) trust then provides the new spouse income for life—and principal access where appropriate—while guaranteeing that whatever remains passes to your children when the spouse dies. This lets you support a spouse and protect a prior family’s inheritance at the same time.
Should I sign my prenup before or after updating my estate plan?
Sign the prenup first, then rebuild the estate plan to match its promises. Draft the prenup with full financial disclosure and independent counsel, and execute it well before the wedding to avoid duress claims. Once the prenup defines what each spouse waives and receives, your will, revocable trust, marital trust provisions, and beneficiary designations should be revised to deliver exactly what the prenup promises.
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