Estate Planning After Remarriage in Florida: Protecting Your Children and Your New Spouse
Remarriage creates one of the most common — and most challenging — estate planning scenarios: the need to provide for a new spouse while protecting children from a prior relationship. Without the right structure, Florida law may leave one or the other without the protection you intended.
Quick Answer
Estate planning after remarriage in Florida requires balancing two competing goals: ensuring your new spouse is provided for, and ensuring your children from a prior relationship receive their inheritance. Florida law makes this more complex in two ways. First, a surviving spouse is entitled to an "elective share" equal to 30% of the decedent's elective estate under Florida Statute §732.2065 — meaning a new spouse can claim 30% of your estate even if your will leaves everything to your children. Second, if you leave everything to your new spouse, your children may receive nothing after the second spouse's death, depending on how the surviving spouse's estate plan is structured. The most effective solution for most blended families is a Qualified Terminable Interest Property (QTIP) trust: it provides income and use rights to the surviving spouse during their lifetime, while ensuring that the principal passes to your children at the surviving spouse's death. A prenuptial or postnuptial agreement can also modify or waive the elective share with both spouses' informed consent.
Remarriage is one of the most common triggers for a complete estate plan overhaul — and one of the most overlooked. Many people who divorce and remarry continue using estate planning documents drafted during the first marriage. The beneficiary designations on life insurance and retirement accounts still name the first spouse. The will was never updated. The trust (if any) reflects the family structure that no longer exists.
When a blended family forms, the estate planning stakes rise significantly. Here is what remarried Broward County residents need to address.
Florida's Elective Share
Under Florida law, a surviving spouse can elect to receive 30% of the decedent's "elective estate" — a broad calculation that includes probate assets, assets in a revocable trust, and certain other transfers — regardless of what the will says.
This elective share exists to prevent a spouse from being entirely disinherited. It is a protection designed for the surviving spouse.
The practical consequence for blended families: if you leave everything to your children from your first marriage in a new will, your surviving new spouse can elect to receive 30% of your estate, potentially disrupting your plan for the children.
Conversely, if you leave everything to your new spouse without the right structure, your children may receive nothing after the second spouse's death.
The elective share can be modified or waived through a prenuptial agreement (before marriage) or a postnuptial agreement (after marriage). Both spouses must participate voluntarily, with independent legal advice and full financial disclosure. A properly drafted agreement can specify exactly what each spouse receives and waives.
The Core Blended Family Tension
Consider a straightforward scenario: You have two adult children from your first marriage and a new spouse. You want your spouse to be secure for life, and you want your children to eventually receive your assets.
Without proper planning:
The right structure resolves both problems.
QTIP Trust: The Standard Solution
A Qualified Terminable Interest Property (QTIP) trust is the most common estate planning tool for blended families. It works as follows:
1. At your death, assets flow into the QTIP trust 2. The surviving spouse receives all income from the trust for life, and the trustee may distribute principal for health, education, maintenance, and support 3. At the surviving spouse's death, the remaining principal passes to your children from your prior marriage
The QTIP trust satisfies the surviving spouse's financial needs while ensuring the children ultimately receive the inheritance. It prevents the surviving spouse from redirecting the assets to different beneficiaries after your death.
For federal estate tax purposes, the QTIP election allows the trust assets to qualify for the marital deduction at your death, deferring any estate tax until the surviving spouse's death.
What to Do Immediately After Remarriage
Before any estate planning document is drafted, take these immediate steps:
1. Review and update all beneficiary designations on life insurance policies, IRAs, 401(k)s, annuities, and bank/investment accounts. These assets pass directly to named beneficiaries and are not controlled by your will. If your first spouse is still named, they may receive those assets regardless of your current wishes.
2. Update your will and/or revocable trust to reflect your current family structure, including the new spouse and your children's interests.
3. Consider a prenuptial or postnuptial agreement if you have significant assets or children whose inheritance you want to protect with certainty.
4. Review your homestead — your new spouse has automatic homestead rights under Florida law unless they waive them in a properly executed agreement.
Stepchildren and Florida Inheritance Law
Florida's intestacy statute (which controls when there is no will) does not give stepchildren any inheritance rights. If you die without a will, your biological and adopted children inherit; your stepchildren do not, regardless of your relationship with them.
If you want stepchildren to inherit, you must include them explicitly in your will or trust.
Conversely, if your new spouse has children from a prior relationship and you want to ensure your own children (not the stepchildren) inherit your assets, the estate plan must be structured accordingly.
Frequently Asked Questions
My first spouse and I had a living trust together. What happens to it after we remarry other people? A jointly held revocable trust should be revoked and replaced with individual trusts for each person. It cannot simply be transferred to the new marriage. Each spouse should have a new, independent trust tailored to their current family structure and goals.
Can I leave my home to my children but let my new spouse live there? Yes, through a life estate or trust provision. The most common approach is a QTIP trust or a life estate deed that gives the surviving spouse the right to use the property during their lifetime, with the property passing to your children at the spouse's death or earlier vacating.
My new spouse has significant assets of their own. Do we still need complicated planning? Independent wealth on both sides can simplify some issues and complicate others. Even if your spouse does not need your assets financially, the elective share still exists as a legal right unless waived. And clarity about what each spouse's assets do at death — and who receives them — is still essential for a blended family.
We got married recently. Is a postnuptial agreement still an option? Yes. A postnuptial agreement can be executed at any time during the marriage with both parties' full informed consent, independent legal counsel, and financial disclosure. It is a valid and commonly used tool for established marriages where the parties want to modify Florida's default inheritance rules.
Contact Mark Mastrarrigo P.A. to structure your estate plan for your blended family. Our Cooper City office serves Broward County residents in Davie, Weston, Plantation, Fort Lauderdale, and throughout the region.