Getting Remarried in Florida? Prenups, Homestead, and Your Estate Plan
When you remarry in Florida, your new spouse automatically gains rights to your estate that your will and trust can’t override on their own: a claim to 30% of nearly everything you own, protected rights in your home, and, if your will predates the marriage, a possible share of your estate even if the will doesn’t mention them. For many people remarrying, that’s exactly what they want. For others, especially those with children from an earlier marriage, it can mean those children inherit far less than intended. A prenuptial or postnuptial agreement, paired with an updated estate plan, lets you and your new spouse decide together how these rules apply to you instead of leaving it to the default law.
What Remarriage Changes
1. The Elective Share: 30% of Nearly Everything
A surviving spouse in Florida can choose to take an elective share, 30% of the “elective estate,” instead of what the will or trust leaves them (Fla. Stat. § 732.2065). The elective estate is broad. It reaches beyond your probate assets to include things like your revocable trust, jointly owned accounts, and accounts with payable-on-death designations. So leaving everything to your children in a trust doesn’t, by itself, keep your new spouse from claiming 30% of it.
2. Homestead: Your Home Has Its Own Rules
If you own your Florida home in your own name and are survived by your spouse, the Florida Constitution restricts who you can leave it to. Your will or trust can’t simply leave it to your children. If you’re also survived by children or other descendants, your spouse receives a life estate, the right to live in the home for life, with the home then going to your descendants. Or, within six months after your death, your spouse can choose a 50% ownership interest instead (Fla. Stat. § 732.401). Either way, your spouse and your children can end up as co-owners. Our post on what Florida’s homestead law actually protects explains these restrictions in more detail.
3. An Old Will Can Give Your New Spouse a Share
If your will was signed before you remarried and doesn’t provide for your new spouse, Florida treats them as a “pretermitted spouse.” They can receive the share they would have gotten if you’d had no will at all (Fla. Stat. § 732.301). That doesn’t apply if a prenup or postnup addresses it, the will provides for them, or the will makes clear the omission was intentional.
4. No Will at All: Your Spouse May Get Half or Everything
Without a will, Florida’s intestacy law decides. If you die having descendants, and if either you or your new spouse has children from another relationship, your spouse receives half of your intestate estate, and your descendants share the other half. If all of your children are also your spouse’s children, and your spouse has no other children, your spouse receives everything (Fla. Stat. § 732.102).
5. Stepchildren Don’t Inherit by Default
Florida law generally doesn’t treat stepchildren as heirs. If you want your spouse’s children to inherit from you, or you’re counting on your spouse to “take care of” your children after you’re gone, it has to be written into your plan. A promise isn’t binding, and once assets pass outright to a surviving spouse, they can spend them, remarry, or leave them to anyone.
6. What Your Divorce Already Changed, and What It Didn’t
If you’re remarrying after a divorce, Florida law generally voids beneficiary designations naming your former spouse on life insurance, IRAs, and payable-on-death accounts, as long as the designation was made before the divorce (Fla. Stat. § 732.703). But that rule doesn’t reach plans governed by federal law, such as many employer 401(k)s and pensions, where the old designation can still control. Review every beneficiary form yourself rather than relying on the statute.
The Tools That Put You in Control
A Prenuptial or Postnuptial Agreement
Florida lets spouses waive their rights in each other’s estates, including the elective share, homestead rights, the pretermitted spouse share, intestate rights, and the right to serve as personal representative (Fla. Stat. § 732.702). To hold up, the waiver has to be in writing and signed in the presence of two witnesses.
Timing matters. For an agreement signed before the wedding, Florida’s estate statute doesn’t require financial disclosure. For one signed after the wedding, each spouse must make a fair disclosure of their finances to the other. Even for a prenup, full disclosure and separate attorneys for each spouse are the best protection, because the agreement often also covers divorce, where enforceability rules are stricter.
A waiver doesn’t have to be all or nothing. Many couples waive the elective share but keep each other in the plan, or waive homestead rights so the home can go to the children while the surviving spouse keeps the right to live there for a set period. Learn more about our prenuptial and postnuptial agreement services.
A Trust That Provides for Both
A revocable trust can provide for your spouse during their lifetime and then pass what’s left to your children, so the assets don’t depend on your spouse’s own estate plan. Pairing that trust with a prenup or postnup is what makes it hold: without a waiver, your spouse may still be able to claim more through the elective share.
Updated Beneficiary Designations
Life insurance, retirement accounts, and payable-on-death accounts pass by their beneficiary forms, not by your will. Update every one after you remarry so they match the plan you and your spouse agreed on. Life insurance is often the simplest way to provide for a new spouse while leaving other assets to your children.
A New Will
Sign a new will (or a pour-over will with your trust) after the wedding. It avoids the pretermitted spouse rule and makes your intentions for your spouse, your children, and your stepchildren clear.
How This Plays Out in Practice
A widower with adult children and no prenup: he remarries, keeps his old will leaving everything to his two daughters, and titles the house in his name alone. When he dies, his new wife can claim a pretermitted share because the will predates the marriage, or elect 30% of his elective estate, and she receives a life estate in the home. His daughters own the house only after she passes, and until then they co-own it with her.
The same family with a plan: before the wedding, he and his fiancée each sign a prenup with full financial disclosure, waiving the elective share and homestead rights. His new trust lets his wife live in the home for two years after his death, then passes it to his daughters. A life insurance policy names his wife as beneficiary. Everyone knows what to expect.
A couple who both have children: each spouse wants their own children to inherit their separate assets, and both want the surviving spouse to stay in the home they bought together. They sign a postnup with fair disclosure, each keep a separate trust for their own children, and set up the plan so the survivor can live in the shared home for life, with the home then split among all the children.
A forgotten 401(k): a man remarries but never updates the beneficiary on his employer 401(k), which still names his ex-wife. Because federal law governs the plan, Florida’s divorce rule may not void that designation, and the account can go to his former spouse instead of his new wife or his children.
When to Speak with an Estate Planning Attorney
The best time to plan is before the wedding, when a prenup needs no financial disclosure under Florida’s estate statute and both of you can negotiate openly. The second-best time is now. If you’ve remarried, or you’re engaged, and your will, trust, deed, or beneficiary forms predate the marriage, it’s worth a conversation with an estate planning attorney about how Florida’s spousal rights apply to your family, and how to set things up so your spouse and your children are both provided for the way you intend.
Frequently Asked Questions
Can I sign a prenup after the wedding? Yes. That’s a postnuptial agreement, and it can waive the same estate rights. The main difference is that after the wedding, Florida requires each spouse to make a fair disclosure of their finances before the waiver is valid.
Does my new spouse automatically get my house? Not automatically, but they get protected rights in it. If you own your Florida home in your own name and leave descendants, your spouse receives a life estate or can elect a 50% interest, regardless of what your will says, unless they’ve waived those rights.
Can I leave everything to my children from my first marriage? Only with your spouse’s cooperation. Without a valid waiver, your spouse can claim the elective share and homestead rights. With one, you have much more freedom to leave your assets to your children.
Do I need a new will after I remarry? Almost always. A will signed before the marriage can trigger the pretermitted spouse rule, and it likely doesn’t reflect your new family. Your trust, deed, and beneficiary forms should be reviewed at the same time.
Does my divorce decree take care of my old estate plan? Partly. Florida generally voids will provisions (Fla. Stat. § 732.507) and many beneficiary designations naming a former spouse, but federal law can override that for some retirement plans, and the divorce doesn’t put your new spouse into your plan. Update everything directly.
Will asking for a prenup hurt the relationship? It’s a fair worry. Many couples find that talking it through with their own attorneys makes it easier: it’s a plan you build together for both families, not a bet against the marriage.
About This Article
Written by Samantha Fitzgerald, Esq., Founder & Managing Attorney at SJF Law Group.
Learn more about our prenuptial and postnuptial agreement services and estate planning services, or read our related posts on Florida homestead inheritance rules for married couples and what Florida’s homestead law actually protects.
