Planning for a second marriage in Florida means coordinating a prenuptial agreement with your wills, trusts, and beneficiary designations so that your new spouse and your children from a prior relationship are each protected on your terms—not on the default terms the state writes for you. In Florida, a properly drafted prenuptial agreement can waive a surviving spouse’s elective share, homestead rights, family allowance, and intestate share, but it only works if the rest of your estate plan is rewritten to match it. The two documents have to speak to each other, or one quietly overrides the other.
I’ve sat across the table from a lot of remarried retirees in Miami—often snowbirds who married later in life, each bringing adult children, a paid-off condo, and an IRA. They almost always assume their will controls everything. It doesn’t. Florida law gives a surviving spouse rights that survive a will, and unless you address them deliberately, your blended-family plan can come apart in probate.
Why second marriages need a different estate plan
A first marriage usually has aligned incentives: the same kids, the same house, a shared lifetime of accumulation. A second or third marriage scrambles that. You may want your spouse to live comfortably for the rest of their life, but you also want your assets to land with your children, not your spouse’s children or a future spouse of theirs.
Left alone, Florida’s default rules don’t honor that nuance. They treat the surviving spouse generously, sometimes at the direct expense of the kids you intended to provide for. The fix is intentional coordination across four moving parts:
- The prenuptial (or postnuptial) agreement, which defines what each spouse waives or keeps.
- The will and revocable living trust, which distribute what’s left.
- Beneficiary designations on retirement accounts, life insurance, and annuities—which pass outside the will entirely.
- Titling of real estate and accounts, especially anything held jointly or as tenants by the entirety.
Change one without the others and you create a contradiction. A prenup that waives all marital rights is meaningless if you then name your spouse as the IRA beneficiary and title the condo jointly with right of survivorship. The non-probate transfers win.
The Florida elective share: the rule that surprises everyone
Florida’s elective share is the single most important concept for remarrying couples to understand. Under Florida Statutes Chapter 732 (specifically §732.201 and following), a surviving spouse is entitled to elect to take 30% of the deceased spouse’s “elective estate”—even if the will or trust leaves them nothing or very little.
The “elective estate” is broad. It isn’t just the probate estate. It reaches into revocable trusts, certain jointly held property, some life insurance, retirement accounts, property over which the decedent held a general power of appointment, and even some assets transferred within a year of death. The Legislature built it precisely to stop someone from disinheriting a spouse by shoving everything into a trust or a payable-on-death account.
For a blended family, here’s the practical danger. Suppose you intend to leave your $1.2 million estate to your three adult children and provide for your new spouse through a separate life insurance policy. If your spouse hasn’t validly waived the elective share, they can ignore your will and claim 30% of that elective estate. Your children’s inheritance shrinks accordingly, and the plan you thought you’d built collapses.
This is why a prenuptial agreement that includes a clear, knowing waiver of the elective share is the backbone of second-marriage planning in Florida. For couples weighing how lifetime care costs interact with these rights, our colleagues handling see the same tension play out around long-term care and spousal protections.
Homestead: the protection that can trap your heirs
Florida’s homestead rules deserve their own conversation because they trip up nearly every remarried couple I meet. Under the Florida Constitution (Article X, §4) and §732.401, your homestead—your primary residence—gets special treatment at death that overrides your will.
If you are married and have minor children, you generally cannot devise your homestead at all. If you are married with no minor children, you can leave it only to your spouse outright. If you try to leave the home to your kids instead, the law steps in: under §732.401, your surviving spouse takes a life estate in the homestead, with the remainder to your descendants—or, by election, the spouse can take a 50% tenant-in-common interest.
Picture the Miami snowbird who owns a condo in Brickell and wants the children from his first marriage to inherit it. He remarries. He never updates anything. He dies. His new wife now has a life estate—she can live there for the rest of her life, and she’s responsible for taxes, insurance, and upkeep, while the kids hold a remainder they can’t touch and can’t sell. Tensions over who pays the special assessment on a 40-year-recertification can turn a family into adversaries fast.
A prenuptial agreement can include a homestead waiver—but Florida courts require it to be explicit and properly executed. A generic “I waive all rights in your property” clause has been held insufficient to waive homestead rights in some cases. The waiver has to be clear and, ideally, executed with the formalities of a deed. Don’t rely on boilerplate here.
What a Florida prenuptial agreement can and can’t do
Florida adopted a version of the Uniform Premarital Agreement Act, codified at §61.079. Within it, couples have wide latitude. A valid Florida prenup can address:
- Waiver of the elective share under §732.702, which specifically allows spouses to waive rights to elective share, homestead, intestate share, family allowance, and to serve as personal representative.
- Property characterization—keeping each spouse’s premarital assets, businesses, and inheritances separate.
- Disposition of property at death, including agreements to leave (or not leave) certain assets.
- Spousal support in the event of divorce, within limits.
What a prenup generally can’t do: it can’t waive child support, can’t bind a court on the best interests of children, and can’t be enforced if it was signed under duress, without fair financial disclosure, or with terms so lopsided they’re unconscionable. Full, honest disclosure of each party’s assets and income is the price of enforceability. Hiding the second brokerage account to make your number look smaller is how a prenup gets thrown out.
Timing matters more than people think
A prenup sprung on a fiancé the week before the wedding invites a duress challenge later. Give the document room to breathe—weeks, not days—and let each party have independent counsel. Two lawyers cost more upfront and save enormous grief at the second death. For Florida residents coordinating these documents locally, our drafts the prenup and the estate plan in tandem so they don’t contradict each other.
Coordinating the prenup with wills, trusts, and beneficiaries
Here’s where most plans break. The prenup gets signed, the couple marries, and the estate plan never gets updated to reflect it. The prenup says the surviving spouse waives all rights; the old will, drafted before the marriage, still names an ex-spouse or makes no provision at all. Now you have litigation.
Proper coordination looks like this:
- Revocable living trust as the spine. A trust avoids probate, keeps your blended-family arrangements private, and—critically—lets you provide for your spouse for life while preserving the remainder for your children.
- A marital trust or QTIP arrangement. A Qualified Terminable Interest Property trust pays income to your surviving spouse for life, then passes the principal to your chosen beneficiaries—your kids. The spouse is provided for; the children are protected; nobody gets disinherited by a later remarriage. This is the workhorse of second-marriage planning.
- Beneficiary designations that match the plan. Retirement accounts and life insurance pass by designation, not by will. If your strategy is to fund your spouse with a life policy and leave the IRA to the kids, the forms have to say exactly that. Review them every time the plan changes.
- Deliberate titling. Joint tenancy with right of survivorship and tenancy by the entirety both override your will. Decide on purpose whether the condo is jointly held or held in trust.
For couples concerned about future long-term care costs eroding what’s left for the kids, asset-protection structures like a can be layered in—though the Florida and New York rules differ, and the look-back period demands early planning, not a deathbed scramble.
Special considerations for snowbirds and dual-state couples
Many remarried retirees in Miami keep a foothold up north—a house in New York, New Jersey, or Connecticut, and a condo in Florida. That dual-state footprint adds wrinkles.
Domicile drives everything. Which state you call your legal home determines whose elective-share, homestead, and estate-tax rules apply. Florida has no state estate or inheritance tax, which is a major reason snowbirds establish domicile here. But you can’t claim Florida homestead on the condo while also claiming a residency exemption up north—pick one, and document it.
Out-of-state real estate can trigger ancillary probate. If you own the New York house in your own name and die a Florida resident, your heirs may face a second, separate probate in New York. Holding that property in a revocable trust usually avoids the headache.
Your prenup should specify governing law. A prenup signed in another state, then carried into a Florida second marriage, may or may not be enforced the same way here. Have Florida counsel review it. What waived an elective share in New York may not cleanly waive Florida homestead rights.
A simple checklist before you remarry in Florida
- Sign a prenuptial agreement with full financial disclosure and independent counsel for each party—well before the wedding.
- Include explicit waivers of the elective share, homestead, family allowance, and intestate share under §732.702 if that’s your intent.
- Rewrite your will and fund a revocable trust to match the prenup.
- Consider a QTIP or marital trust to provide for your spouse while preserving principal for your children.
- Update every beneficiary designation and confirm how each asset is titled.
- Confirm your domicile and address any out-of-state real estate.
None of this is about distrust. It’s about clarity. The most loving thing remarrying retirees can do for both their spouse and their children is remove the guesswork—so that no one is left fighting over a Brickell condo or a brokerage account while grieving. If you’re planning a second marriage, talk with an attorney who handles both the prenup and the estate plan as one project. You can review our wills and trusts services, learn about the Florida probate process, or reach out to our Miami office to start the conversation.
Frequently Asked Questions
Can a Florida prenuptial agreement waive a surviving spouse's elective share?
Yes. Under Florida Statutes §732.702, spouses can waive the elective share, homestead rights, family allowance, intestate share, and the right to serve as personal representative—provided the waiver is in writing, signed, and supported by fair and reasonable financial disclosure. Without that disclosure, a court may refuse to enforce it.
What happens to my Florida home if I leave it to my children but I'm remarried?
Florida homestead law (Article X, §4 of the Constitution and §732.401) overrides your will. If you’re married with no minor children and try to leave the homestead to your kids, your surviving spouse instead receives a life estate with the remainder to your descendants, or can elect a 50% tenant-in-common interest. A valid, explicit homestead waiver in a prenup is the way to change this result.
How does a QTIP trust help in a second marriage?
A Qualified Terminable Interest Property (QTIP) trust pays income to your surviving spouse for life, ensuring they’re provided for, then directs the remaining principal to the beneficiaries you choose—typically your children from a prior marriage. It prevents your assets from being redirected to your spouse’s heirs or a future spouse, balancing both families’ interests.
I'm a snowbird who lives part of the year in Florida. Which state's rules govern my estate?
Your legal domicile controls. The state you establish as your permanent home determines which elective-share, homestead, and estate-tax rules apply. Florida has no state estate tax, which attracts many retirees, but you must document domicile consistently and can’t claim conflicting residency exemptions in two states. Out-of-state real estate held in your own name can also trigger a separate ancillary probate.
Do both spouses need their own lawyer for a prenuptial agreement?
It’s strongly recommended. Independent counsel for each party reduces the risk that the agreement is later challenged for duress, lack of understanding, or inadequate disclosure. Combined with signing well before the wedding and exchanging complete financial information, separate representation makes a Florida prenup far more likely to be enforced at death or divorce.
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For more on our Florida practice, see our overview of Florida estate planning. Morgan Legal Group's affiliated New York office also handles .
