Planning for a second marriage in Florida means coordinating your prenuptial agreement and your estate plan so they say the same thing. Florida law gives a surviving spouse powerful default rights — an elective share, homestead protection, and a place at the front of the intestacy line — that can quietly override the will and trust you signed for your children years earlier. A prenuptial agreement is the instrument that adjusts those defaults, but it only works when your will, trust, beneficiary designations, and deeds are drafted to match.
I have sat across the table from more than one physician or business owner who assumed their old revocable trust would “just handle it” after they remarried. It rarely does. When a marriage and an estate plan are drafted in separate rooms by people who never talk to each other, the surviving spouse and the adult children end up litigating the gap. This article walks through how the two documents fit together under Florida law, and where second marriages go wrong.
Why Second Marriages Need Special Estate Planning in Florida
The core tension is simple. You usually want to provide for your new spouse during their lifetime, but you also want what is left to pass to your own children — not to your spouse’s children, and not to whomever your spouse marries next. Florida’s default rules are not designed for that goal. They are designed to protect a surviving spouse, and they do so aggressively.
Three Florida doctrines do most of the damage when a plan is left unadjusted:
- The elective share. Under Florida Statutes Chapter 732, a surviving spouse can elect to take 30% of the “elective estate,” which is far broader than the probate estate. It reaches revocable trust assets, certain joint accounts, payable-on-death accounts, and even some assets transferred within a year of death. A disinherited spouse can claim it regardless of what your will says.
- Homestead. Florida’s constitutional homestead protection restricts how you can devise your primary residence if you are survived by a spouse or minor child. Leave the homestead to your kids outright while married, and the devise can be invalid — the spouse may instead receive a life estate or a one-half tenancy in common.
- Pretermitted spouse and intestacy. A spouse omitted from a will executed before the marriage may take an intestate share under Florida Statutes 732.301 unless the will or a marital agreement provides otherwise.
None of these are theoretical. They are the most common reasons a second-marriage estate ends up in front of a probate judge in Miami-Dade, Broward, or Palm Beach County.
What a Florida Prenuptial Agreement Can and Cannot Do
A prenuptial agreement is the most direct tool for resetting the defaults above. Florida adopted the Uniform Premarital Agreement Act in Florida Statutes Chapter 61 (sections 61.079 and following), and it allows engaged couples to contract about property rights, what happens at death, and the disposition of assets.
Rights a prenup can waive
Properly drafted, a Florida prenuptial agreement can waive or modify:
- The elective share under Chapter 732
- Homestead devise restrictions (through a specific, statutorily compliant waiver)
- The intestate share and the family allowance
- Exempt property and the right to a preferred appointment as personal representative
- Rights in retirement and pension benefits — though ERISA-governed plans require a separate post-marriage spousal waiver, because a fiancé cannot waive what a non-spouse does not yet have
What a prenup cannot fix
A prenup is a waiver, not a transfer. It says what your spouse gives up; it does not say what your children receive. That is the estate plan’s job. A prenup also cannot, by itself, retitle the home or fund a trust. And it will not survive a challenge if it was signed without fair and reasonable financial disclosure, or signed under duress the week of the wedding. Florida courts scrutinize the circumstances under section 61.079(7). Full written disclosure of assets and income, separate counsel for each party, and a comfortable signing window — weeks, not hours — are what make these agreements hold up.
Coordinating the Prenuptial Agreement With the Estate Plan
This is where most plans fall apart, and where the work actually lives. The prenup and the estate plan must be drafted as one coordinated system. When the documents contradict each other, the contradiction becomes the lawsuit.
A coordinated second-marriage plan in Florida usually moves through these steps:
- Inventory and characterize assets. Separate what is genuinely premarital and individual from what will become marital. The prenup should define this in writing so there is no argument later.
- Decide the lifetime-versus-remainder split. Determine what the surviving spouse receives for life and what passes to your children at the spouse’s death.
- Draft the prenup to waive the statutory rights you are replacing. The waiver language must be specific. A vague “each party waives all marital rights” clause invites attack.
- Build the will and trust to deliver what the prenup promised. If the agreement says the spouse gets a marital trust, the trust has to exist and be funded.
- Align beneficiary designations and deeds. Life insurance, IRAs, 401(k)s, annuities, and titled accounts pass by designation, not by will. A perfect prenup means nothing if the old beneficiary form still names a child from the first marriage.
- Address the homestead deliberately. Either secure a valid homestead waiver in the prenup or plan around the spouse’s life estate or elective half-interest.
The QTIP trust: the workhorse of second-marriage planning
The most common structure I use is a marital trust — frequently a QTIP (Qualified Terminable Interest Property) trust. The surviving spouse receives all income from the trust for life, and sometimes principal for health and support. On the spouse’s death, whatever remains passes to your children, not to the spouse’s heirs. The QTIP also qualifies for the federal marital deduction, which can matter for professionals and physicians whose combined estates approach the federal exemption.
The prenup and the QTIP must be mutually reinforcing: the spouse waives the elective share in exchange for the contractual promise of the QTIP. Drafted together, the spouse is provided for, the children’s remainder is protected, and the default statutory rights are off the table. Married couples weighing whether a lifetime trust or a different vehicle fits their situation often start by comparing the building blocks on our wills and trusts overview before committing to a structure.
Florida Homestead: The Trap That Catches Careful Planners
Homestead deserves its own section because it surprises even sophisticated clients. The Florida Constitution restricts devise of homestead property when you are survived by a spouse or minor child. If you die owning the home in your individual name and you are married, you generally cannot leave it solely to your children. The spouse takes either a life estate with a vested remainder in your descendants, or — if the spouse elects within six months — a one-half interest as a tenant in common.
For second marriages this is combustible. Your spouse and your children become co-owners of a house, forced to agree on taxes, insurance, repairs, and an eventual sale. The clean solution is a knowing, written homestead waiver in the prenuptial agreement, executed with the same formality as a deed. Without it, even a flawless trust cannot redirect the home. The interaction of homestead, creditor protection, and devise is intricate enough that it is worth reviewing alongside the rest of your rather than treating the residence as an afterthought.
Special Considerations for Physicians and Professionals
Higher-asset professionals carry complications that raise the stakes of getting this coordination right.
- Practice and business interests. A medical practice, partnership stake, or professional corporation is usually a premarital separate asset you want to keep out of the marital estate and pass to children or partners. The prenup should characterize it explicitly, and buy-sell agreements must align with the estate plan.
- Retirement and ERISA plans. Federal law gives a spouse automatic rights in many qualified plans. A prenup alone does not waive them; a separate spousal consent signed after the marriage is required. This is one of the most frequently missed steps.
- Asset protection layered with estate planning. Professionals exposed to malpractice or business liability often hold assets in protective structures. Some planning tools serve both creditor protection and benefits-eligibility goals — for example, the kind of structures explained in this guide to a illustrate how irrevocable trusts shield assets while preserving a stream of benefit to a beneficiary.
- Long-term care and disabled beneficiaries. If a spouse or child has special needs or may need public benefits, income-stream planning matters. A is one example of how surplus income can be directed without disqualifying a beneficiary — a concept that informs how we structure income provisions for a surviving second spouse.
Common Mistakes in Florida Second-Marriage Estate Plans
- Signing the prenup and never updating the estate plan. The waiver exists, but no trust delivers what was promised. The spouse waived rights and received nothing — a fast path to a fraud or rescission claim.
- Relying on joint ownership. Titling the home or accounts jointly with a new spouse usually defeats the goal of passing assets to children, because survivorship overrides the will entirely.
- Forgetting beneficiary designations. The single most common failure. Retirement accounts and life insurance ignore your will and your trust.
- Skipping the homestead waiver. Assuming the trust controls the residence when the Constitution says otherwise.
- Inadequate financial disclosure. Rushing the prenup or hiding assets gives the surviving spouse grounds to void it years later, collapsing the entire plan.
When to Bring in a Florida Estate Planning Attorney
If you are entering a second marriage and either spouse has children from a prior relationship, meaningful separate assets, a business or professional practice, or a home either party wants to keep in the family, the prenup and the estate plan should be drafted together — ideally by attorneys who coordinate rather than work in isolation. The goal is one consistent story: the spouse is cared for, the children’s inheritance is secured, and Florida’s default rights have been deliberately and validly adjusted. If you have already remarried without a prenup, much of this can still be accomplished through a postnuptial agreement combined with trust planning, though your options narrow. You can start the conversation through our contact page or review the broader probate landscape on our Florida probate resource.
Frequently Asked Questions
Does a prenuptial agreement override Florida's elective share?
Yes, if it is properly drafted. Florida Statutes Chapter 732 lets a surviving spouse claim 30% of the broad elective estate, but a spouse can waive that right in a valid premarital agreement under Chapter 61. The waiver must be specific, supported by fair and reasonable financial disclosure, and signed without duress. A vague catch-all waiver may not survive a challenge.
What happens to my Florida home if I remarry and leave it to my children?
Florida’s constitutional homestead rules generally prevent you from devising your homestead solely to your children when you are survived by a spouse. The spouse usually receives a life estate with a remainder to your descendants, or can elect a one-half tenant-in-common interest. To leave the home to your children, you typically need a knowing, written homestead waiver in a prenuptial or postnuptial agreement.
Can I provide for my new spouse and still protect my children's inheritance?
Yes. A QTIP or marital trust is the standard tool. Your surviving spouse receives income (and sometimes principal) for life, and whatever remains passes to your children at the spouse’s death rather than to the spouse’s heirs. Paired with a prenup that waives the statutory elective share in exchange for the trust, this balances both goals.
Is it too late to plan if I am already remarried without a prenup?
No, but your options are narrower. A postnuptial agreement combined with trust planning can accomplish much of what a prenup would have, including elective-share and homestead waivers. Because a postnup requires your current spouse’s voluntary, fully informed consent, it is generally harder to negotiate than a prenup, so acting sooner is better.
Do I need to update my beneficiary designations after remarrying in Florida?
Almost always. Life insurance, IRAs, 401(k)s, and payable-on-death accounts pass by beneficiary designation and ignore your will and trust entirely. A perfectly coordinated prenup and estate plan can still fail if an outdated form names a former spouse or a child from your first marriage. Review every designation as part of the remarriage plan, and remember ERISA plans require a separate post-marriage spousal waiver.
