Blended-Family Estate Planning in Florida

In a Florida second marriage, the default rules often leave the surviving spouse and the decedent’s children from a prior relationship tied together on the house — and surprised by the elective share on everything else. A plan that “treats everyone fairly” in conversation fails if the titles, beneficiary forms, and homestead rules say something different.

The Intestacy Trap

Die without a will and §732.102, Fla. Stat., controls the spouse’s intestate share:

If all of the decedent’s descendants are also the spouse’s descendants, and the spouse has no other descendants: spouse takes all
If the decedent has any descendant who is not the spouse’s descendant: spouse takes one-half
If all of the decedent’s descendants are also the spouse’s, but the spouse has a descendant who is not the decedent’s: spouse takes one-half

That one-half rule is the everyday blended-family intestacy result. The other half goes to the decedent’s descendants under §732.103, Fla. Stat. Nobody has to be fighting for this outcome. It is the statute.

Homestead Is the Recurring Disaster

If the decedent owned a Florida homestead and is survived by a spouse (and no minor child in the forbidden-devise sense), the Constitution and §732.4015, Fla. Stat., sharply limit who can receive the house by will or trust. When the devise fails or is not authorized, §732.401, Fla. Stat., typically gives the spouse a life estate with remainder to the decedent’s descendants, often children from a first marriage.

That life estate forces the spouse and the stepchildren into a shared property relationship for the spouse’s lifetime: taxes, insurance, repairs, and sale friction. The spouse can elect an undivided one-half as tenant in common instead, but the election must be recorded within six months of death (§732.401(2), Fla. Stat.). Miss it and the life estate sticks.

Full mechanics: Florida homestead in probate.

Elective Share Sits on Top

Even with a will that “leaves the kids the brokerage account,” the surviving spouse may claim 30% of the elective estate (§§732.201, 732.2065, Fla. Stat.). Revocable trusts and many nonprobate transfers count. Read Florida elective share before you assume a trust solved the second-marriage problem.

Spouses can waive elective share and related rights by a compliant agreement under §732.702, Fla. Stat. Second marriages without a prenuptial or postnuptial conversation are where elective-share litigation is born.

Planning Patterns That Work in Practice

1. Decide the house on purpose. Options include tenancy by the entireties (spouse takes all by survivorship), a carefully structured trust interest that respects homestead limits, or, in some sole-owner situations, a Lady Bird deed that does not violate devise restrictions. There is no universal right answer; there is only an answer that matches this marriage and these children.

2. Fund the spouse without starving the children. QTIP-style and other marital trusts, life-insurance dedicated to children, and clear nonprobate designations beat vague promises.

3. Coordinate beneficiary forms. IRAs and life insurance ignore the will. An ex-spouse still named on an account is a real-world outcome, not a hypo.

4. Use a will and, when funding discipline exists, a revocable trust. The trust is for control and probate avoidance; the elective share and homestead rules still apply.

5. Write the awkward paragraph. Who lives in the house, who pays for the roof, what happens if the spouse remarries, when children can force a sale. If it is not in the documents, the family will litigate the silence.

What Guardianship Has to Do With It

Blended families also fail on incapacity: an adult child and a stepparent disagree, and there is no working durable power of attorney. Guardianship then becomes the forum. Planning for incapacity is part of blended-family work, not a separate “elder law only” topic.

Common Questions

Can I leave the house to my children and let my spouse live there? Sometimes, with the right structure and homestead analysis. A bare will gift that violates §732.4015 fails. Do not DIY this sentence.

Does a prenup really matter if we are already married? A postnuptial waiver can still work under §732.702 if disclosure and execution are done correctly. Harder politically than a prenup; still better than silence.

We are happy. Do we really need this? Happy spouses still die in an order nobody planned for. The statute does not grade relationships.

Reviewed by David A. Shulman, Florida Bar Board Certified in Wills, Trusts and Estates. Last updated July 2026.