Planning for a second marriage in Florida means coordinating a prenuptial agreement with your will, trusts, and beneficiary designations so that the surviving spouse and the children from a prior relationship are both protected. Under Florida law, a prenuptial agreement can waive the spousal rights that would otherwise override your estate plan, while a properly drafted trust controls who ultimately inherits. When the prenup and the estate documents are written in isolation, they contradict each other—and Florida’s homestead and elective-share statutes usually win that fight.
For the retirees and seasonal residents who make up so much of Palm Beach County, this is not an abstract worry. Many of our clients are marrying later in life, each arriving with a paid-off home, an IRA, a brokerage account, and adult children who have opinions. The legal machinery that governs what happens at death is different for a second marriage than it was the first time around, and Florida’s default rules are aggressive about protecting a surviving spouse—sometimes at the direct expense of the very children you intend to provide for.
Why Second Marriages Need Their Own Estate Plan
In a first marriage, spouses tend to share a single set of beneficiaries: each other, then the kids. The interests line up. In a second marriage, they rarely do. You may want your new spouse to live comfortably for the rest of their life, but you almost certainly want what is left to flow to your children, not your spouse’s children or a future third spouse.
Florida’s intestacy and spousal-rights statutes do not assume any of that. Left unplanned, a second marriage can quietly disinherit the children you spent decades raising. Three Florida doctrines do most of the damage:
- The elective share — a surviving spouse can claim 30% of the deceased spouse’s “elective estate” no matter what the will says.
- Homestead protections — the surviving spouse has constitutional rights in the marital home that can defeat a devise to your children.
- Pretermitted and intestate spouse rules — a spouse omitted from a will signed before the marriage may take a full intestate share anyway.
A prenuptial agreement is the cleanest tool for switching off the defaults you do not want, but it only works when the estate plan is built to match it. The two have to be drafted as one project.
How a Florida Prenuptial Agreement Interacts With Your Estate Plan
Florida adopted the Uniform Premarital Agreement Act, codified at Florida Statutes Chapter 61, sections 61.079. Under that statute, parties may contract about the disposition of property at death, the making of a will or trust, and the rights and obligations each spouse has in the other’s property. In practical terms, a prenup is where a spouse can voluntarily waive the elective share, the right to homestead, the family allowance, exempt property, and intestate succession rights.
Those waivers are powerful precisely because they pre-empt the rights that would otherwise blow up your estate plan. But a prenup is a contract, not a dispositive document. It says what each spouse gives up; it does not say who inherits. That second job belongs to your will, your revocable trust, and your beneficiary designations. This is where coordination becomes everything.
The Spousal-Waiver Language That Actually Holds Up
Florida courts read estate-rights waivers narrowly. A general statement that the spouses keep their “separate property” is often not enough to waive the elective share or homestead rights. Section 732.702 of the Florida Probate Code requires that a waiver of spousal rights be in a written contract signed by the waiving party, and Florida case law has repeatedly invalidated vague waivers. The agreement should name the specific rights being relinquished—elective share, homestead, family allowance, exempt property, preference in appointment as personal representative, and intestate share—rather than gesturing at them generally.
Disclosure: The Step Couples Skip and Later Regret
Under section 61.079, a premarital agreement can be set aside if it was not voluntary, or if it was unconscionable and the challenging spouse was not given fair and reasonable disclosure of the other’s property and finances. For a second-marriage couple in their sixties or seventies, “fair disclosure” means attaching real schedules: the brokerage statements, the IRA balances, the value of the Palm Beach condo. A handshake estimate scribbled the week before the wedding is exactly the kind of record that produces litigation after a death.
Coordinating the Three Layers: Prenup, Trust, and Beneficiary Designations
Think of a well-built second-marriage plan as three layers that must agree with one another.
- The prenup defines what each spouse keeps separate and what spousal rights are waived.
- The revocable living trust (and pour-over will) directs who actually inherits, and in what order, consistent with the prenup.
- The beneficiary designations on IRAs, 401(k)s, annuities, and life insurance must point exactly where the first two layers say they should.
The most common failure we see in Palm Beach estates is not a bad prenup—it is a good prenup undermined by a stale beneficiary form. A man waives nothing improper, signs a clean trust leaving his IRA to his children, and then forgets that the IRA still names his first wife, or names “my estate,” dragging the asset into probate where the homestead and elective-share fights resume. Beneficiary designations override your will. Always.
The QTIP Trust: Provide for a Spouse, Protect the Children
For couples who want the surviving spouse cared for and the children guaranteed to inherit eventually, the workhorse tool is a QTIP trust (qualified terminable interest property trust). The surviving spouse receives all the income from the trust for life—and can be given the right to live in the home—but the spouse cannot redirect the remainder. When the surviving spouse dies, whatever is left passes to the children you named, not to the spouse’s heirs.
Florida even allows the surviving spouse’s elective share to be satisfied, in part, through an “elective-share trust” with QTIP-like terms, which lets you honor a spouse’s minimum statutory rights without handing over assets outright. Pairing a QTIP structure with a prenup that caps or waives the elective share is one of the most reliable ways to keep both promises at once.
Homestead: The Palm Beach Problem That Surprises Snowbirds
Florida’s homestead protections are written into the state constitution, and they are stronger than almost anywhere else in the country. Here is the trap for second marriages: if you own the home in your sole name and you are survived by a spouse, you generally cannot simply leave that home to your children. Article X, Section 4 of the Florida Constitution restricts how homestead is devised when there is a surviving spouse.
By default, the surviving spouse takes a life estate with a remainder to the descendants—or, under section 732.401, the spouse may elect a one-half tenancy-in-common interest instead. Either way, your children do not get the house free and clear, and the spouse and children become unwilling co-owners. For a couple where one person brought the Palm Beach home into the marriage, this is exactly the outcome a prenup is meant to prevent.
The fix is to waive homestead devise rights expressly in the prenuptial agreement, and then to decide affirmatively in the trust what happens to the residence—whether the surviving spouse may live there for life, for a fixed term, or until they remarry. A waiver without a plan, or a plan without a waiver, leaves the door open.
Timing, Updates, and the Documents That Travel With You
Seasonal residents present a special wrinkle. If you split the year between, say, New York and Palm Beach, the question of which state is your legal domicile affects which state’s spousal-rights and tax rules apply to your estate. Couples who genuinely intend to be Florida residents should make that intent unmistakable—Florida driver’s license, voter registration, declaration of domicile, and a Florida-executed estate plan—so that a New York court does not later assert jurisdiction and a different body of elective-share law. Families coordinating a move from the Northeast often work with an on the front end and a Florida estate planning attorney on the back end so nothing falls between the two states.
A prenup should also be revisited after major life events: the sale of a business, an inheritance, a serious health diagnosis, or the purchase of a new homestead. And couples worried about long-term care costs should think about asset protection early, because Medicaid planning tools such as a have multi-year look-back periods that punish last-minute moves. Florida has its own Medicaid framework, but the planning instinct—act years ahead—is identical.
Common Mistakes in Second-Marriage Planning
- Signing the prenup but never updating the will. A pre-marriage will may treat the new spouse as a stranger—or omit them entirely, triggering pretermitted-spouse claims.
- Vague waivers. “We each keep our own stuff” does not waive the elective share or homestead under Florida law.
- Forgotten beneficiary forms. Retirement accounts and life insurance pass by designation, outside the will and outside the prenup.
- Joint ownership by accident. Re-titling the home or accounts as joint tenants with right of survivorship can silently override everything the prenup says.
- No disclosure schedules. A prenup without financial disclosure is the easiest kind to challenge after death.
When to Bring in a Florida Estate Planning Attorney
If either spouse has children from a prior relationship, owns a home, or holds retirement assets—which describes nearly every second marriage in Palm Beach—the prenup and the estate plan should be drafted together, ideally by an attorney who handles both. Our firm regularly coordinates these documents so the waivers, the trust terms, and the beneficiary designations all tell the same story. You can review our broader Florida estate planning services, read more about the mechanics of Florida wills, or learn how the process unfolds after death on our Florida probate page.
A second marriage is a fresh start. With the prenup and the estate plan working in concert, it does not have to come at the cost of the family you built before. Contact our Palm Beach office to coordinate both in one sitting.
Frequently Asked Questions
Can a prenuptial agreement waive the spousal elective share in Florida?
Yes. Under Florida Statutes section 61.079 and the waiver provisions of section 732.702, a spouse may waive the elective share, homestead rights, family allowance, exempt property, and intestate succession in a signed premarital agreement. The waiver should name those specific rights, because Florida courts have refused to enforce vague “separate property” language as a waiver of statutory spousal rights.
Will my prenup automatically protect my children from a first marriage?
Not by itself. A prenup defines what each spouse gives up; it does not name who inherits. To guarantee your children receive what you intend, you also need a coordinated will or revocable trust—often a QTIP trust—plus beneficiary designations that match. The prenup removes the obstacles; the trust delivers the inheritance.
What happens to my Florida home if I remarry and die without addressing homestead?
Under Article X, Section 4 of the Florida Constitution and section 732.401, a surviving spouse generally receives a life estate in the homestead with the remainder to your descendants, or may elect a one-half tenancy-in-common interest. You usually cannot simply leave the home to your children outright unless the spouse has waived homestead rights, typically in the prenuptial agreement.
Do beneficiary designations override my prenup and my will?
Yes. IRAs, 401(k)s, annuities, and life insurance pass directly to the named beneficiary, outside of probate and outside the terms of your will or prenup. After signing a second-marriage estate plan, you must update every beneficiary form so it points where the new plan directs—otherwise an old designation can defeat the entire plan.
We split the year between New York and Florida—which state’s rules apply?
It depends on your legal domicile at death, which controls spousal-rights and tax treatment. Seasonal residents who intend to be Floridians should establish clear domicile—Florida license, voter registration, a declaration of domicile, and a Florida-executed estate plan—so another state cannot apply a different elective-share regime to your estate.
Frequently Asked Questions
Can a prenuptial agreement waive the spousal elective share in Florida?
Yes. Under Florida Statutes section 61.079 and the waiver provisions of section 732.702, a spouse may waive the elective share, homestead rights, family allowance, exempt property, and intestate succession in a signed premarital agreement. The waiver should name those specific rights, because Florida courts have refused to enforce vague ‘separate property’ language as a waiver of statutory spousal rights.
Will my prenup automatically protect my children from a first marriage?
Not by itself. A prenup defines what each spouse gives up; it does not name who inherits. To guarantee your children receive what you intend, you also need a coordinated will or revocable trust, often a QTIP trust, plus beneficiary designations that match. The prenup removes the obstacles; the trust delivers the inheritance.
What happens to my Florida home if I remarry and die without addressing homestead?
Under Article X, Section 4 of the Florida Constitution and section 732.401, a surviving spouse generally receives a life estate in the homestead with the remainder to your descendants, or may elect a one-half tenancy-in-common interest. You usually cannot simply leave the home to your children outright unless the spouse has waived homestead rights, typically in the prenuptial agreement.
Do beneficiary designations override my prenup and my will?
Yes. IRAs, 401(k)s, annuities, and life insurance pass directly to the named beneficiary, outside of probate and outside the terms of your will or prenup. After signing a second-marriage estate plan, you must update every beneficiary form so it points where the new plan directs, otherwise an old designation can defeat the entire plan.
We split the year between New York and Florida, which state's rules apply?
It depends on your legal domicile at death, which controls spousal-rights and tax treatment. Seasonal residents who intend to be Floridians should establish clear domicile (Florida license, voter registration, a declaration of domicile, and a Florida-executed estate plan) so another state cannot apply a different elective-share regime to your estate.
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