Small Claims Court

Small claims courts exist precisely so ordinary people can resolve modest disputes without a lawyer. They have simplified procedures, lower filing fees, and dollar limits on the amount you can sue for, which vary by state. If someone owes you a limited sum, a security deposit is being withheld, or a minor contract was broken, small claims is often designed for self-representation. In fact, some states limit or bar lawyers in these courts.

Routine Government Paperwork

Many interactions with government agencies are form-driven and well-documented. Registering a sole proprietorship, applying for certain permits, disputing a routine ticket, or filing basic paperwork often comes with official instructions you can follow. When the agency provides clear guidance and the stakes are low, doing it yourself is reasonable.

Simple, Standard Agreements

For low-risk, everyday agreements — a basic month-to-month arrangement, a simple bill of sale, or a straightforward personal loan between people who trust each other — reputable templates can be enough. The key word is simple. Once real money, ongoing obligations, or complex terms enter the picture, the value of professional review rises quickly.

Doing Your Own Research First

Even when you ultimately hire a lawyer, you can handle the early stages yourself: gathering documents, building a timeline, reading the relevant rules, and understanding your basic options. This preparation makes any eventual legal help cheaper and more effective because you arrive informed.

When You Should Not Go It Alone

Self-representation stops being smart when the stakes climb. Strongly consider an attorney when:

• You’re facing criminal charges of any kind.
• The other side has a lawyer.
• Significant money, your home, or your business is at risk.
• The matter involves children, such as custody disputes.
• There are strict deadlines you don’t fully understand.
• The outcome is hard to undo, like signing away rights or property.

In these situations, a mistake can be expensive or permanent, and the cost of advice is small by comparison.

A Middle Path: Limited Help

You don’t always have to choose between full representation and total self-reliance. Many attorneys offer “unbundled” or limited-scope services, where you handle most of a matter yourself and pay a lawyer only to review a document, coach you before a hearing, or answer specific questions. This can be a cost-effective compromise for matters that are mostly manageable but have one tricky part.

The Bottom Line

Handle the small, simple, low-risk matters yourself, and you’ll save money and gain confidence. But be honest about complexity and stakes. When your freedom, your finances, your family, or an irreversible decision is on the line, the question isn’t whether you can technically do it alone — it’s whether you should. When in doubt, a single consultation can tell you which side of the line you’re on.

The Basic Idea

Under a contingency fee, the attorney’s payment is contingent on the outcome. Instead of paying an hourly rate or a flat fee up front, you agree that the lawyer will take an agreed percentage of whatever money you recover — through a settlement or a court award. If there’s no recovery, you generally owe no attorney’s fee. That’s the “no win, no fee” promise.

Where Contingency Fees Are Used

This model is most common in cases where the client is seeking money and may have limited cash to pay a lawyer up front — personal injury claims, certain employment disputes, and some consumer matters. It’s generally not used, and in many places is prohibited, for criminal defense and family law matters like divorce or child custody.

How the Percentage Works

The fee is a percentage of the amount recovered, agreed in advance and put in writing. That percentage can vary depending on the type of case, the attorney, and how far the case goes — for example, whether it settles early or proceeds through a trial. Some agreements use a sliding scale that increases if the case becomes more involved. Always confirm the exact percentage and when it applies before you sign.

“No Fee” Doesn’t Always Mean “No Costs”

This is the part people miss most often. A lawsuit involves expenses beyond the attorney’s fee — court filing fees, costs to obtain records, fees for expert witnesses, and similar charges. In many contingency arrangements, these case costs are handled separately from the attorney’s percentage. Some firms advance these costs and deduct them from your recovery; others may expect you to cover them, and you could owe them even in some no-recovery scenarios. Read the agreement carefully so you understand exactly what “no win, no fee” covers and what it doesn’t.

Why Contingency Fees Exist

The arrangement serves a real purpose: it gives people access to the courts even when they can’t pay hourly rates. It also aligns incentives — the lawyer only gets paid well if you do, so they have a strong reason to pursue the strongest possible result. Because the firm takes on financial risk, attorneys are also selective, typically accepting cases they believe have merit.

Questions to Ask Before Signing

• What percentage will you take, and does it change if the case goes to trial?
• Is the percentage calculated before or after case costs are deducted?
• Who pays the case costs along the way, and what happens to them if we don’t win?
• How will any settlement money be distributed, and when?
• Can I see a sample of how the final numbers would break down?

The Takeaway

A contingency fee can be a fair and powerful way to pursue a claim without paying out of pocket up front. The key is to read the written agreement closely, understand the difference between the attorney’s fee and case costs, and ask exactly how the money flows if you win — and what you owe if you don’t. Clear answers up front prevent unpleasant surprises at the end.

Confirm They’re Licensed and in Good Standing

Every practicing attorney in the U.S. must be licensed by the bar in the state where they practice. State bar associations typically maintain an online directory where you can confirm that a lawyer is licensed, see how long they’ve been admitted, and check whether they have a record of public discipline. This is the first and most important check — and it’s free.

Match Their Experience to Your Problem

Law is highly specialized. A skilled estate planning attorney may be the wrong choice for a criminal matter, and vice versa. Ask directly how much of their practice is devoted to cases like yours and how many similar matters they’ve handled. You want someone who works in your specific area regularly, not someone who dabbles.

Read Reviews — and Read Them Critically

Online reviews and testimonials can offer useful signals, but treat them as one input among many. Look for patterns rather than isolated raves or rants: consistent praise for communication, or repeated complaints about being hard to reach, tells you more than any single comment. Be skeptical of reviews that sound generic or staged.

Ask About Who Will Actually Do the Work

At larger firms, the attorney you meet may not be the one handling your day-to-day matter. Ask who will be your primary contact, who will appear in court or negotiations, and how the team is structured. There’s nothing wrong with associates and paralegals doing work — it can lower your bill — but you deserve to know who’s responsible.

Understand the Fees Before You Commit

Get clarity on how you’ll be charged: hourly, flat fee, or contingency. Ask what’s included, how expenses like filing fees are handled, and request a written fee agreement. A lawyer who is vague or evasive about money is a warning sign. A trustworthy attorney explains costs plainly and puts them in writing.

Evaluate Communication and Responsiveness

Poor communication is one of the most common client complaints. During your initial contact, notice how quickly they respond and whether they explain things clearly. Ask how they prefer to communicate, how often you’ll get updates, and what their typical response time is. These habits during courtship usually reflect what you’ll experience as a client.

Trust Your Read on Fit

Finally, pay attention to whether you feel comfortable and respected. Did they listen carefully? Did they set realistic expectations instead of promising guaranteed results? You may share sensitive information with this person for months. Competence matters, but so does trust.

A Simple Vetting Checklist

• Verify the license and disciplinary record through the state bar.
• Confirm experience in your specific type of matter.
• Read reviews for patterns, not anecdotes.
• Identify who will handle your case day to day.
• Get a written, clearly explained fee agreement.
• Assess responsiveness and personal fit.

Spend an afternoon on these steps and you’ll dramatically improve your odds of hiring an attorney who is both qualified and right for you.

Showing Up Without Your Documents

The single most common mistake is arriving empty-handed. Contracts, letters, court papers, emails, photos, and a written timeline of events all help an attorney give you accurate guidance instead of vague generalities. Bring copies, organized in date order if you can. The more concrete information you provide, the more useful the meeting will be.

Not Writing Down Your Questions in Advance

It’s easy to forget half of what you wanted to ask once you’re in the room. Prepare a written list. Good questions include: How much experience do you have with cases like mine? What are the likely outcomes? How will you charge me? Who in the office will actually handle my matter? How will we communicate, and how quickly do you respond?

Holding Back Unfavorable Facts

Some people hide the embarrassing or damaging parts of their story, hoping to make their case look stronger. This backfires. A lawyer can only protect you if they know the full picture, and conversations during a consultation are generally confidential. Surprises that emerge later can cost you the case. Be honest, especially about the weak spots.

Treating the Free Price as the Only Factor

A free consultation tells you nothing about the eventual cost of representation. Don’t leave without understanding the fee structure — hourly, flat fee, or contingency — and what services it covers. “Free” refers to the first meeting, not the case. Failing to clarify this leads to sticker shock later.

Forgetting to Evaluate the Lawyer

The consultation is your chance to judge fit. Did the attorney listen, or rush you? Did they explain things in plain language? Did they make realistic promises rather than guaranteeing results — something ethical lawyers avoid? You may be working with this person for months. Pay attention to how the conversation feels, not just what is said.

Expecting Full Legal Advice on the Spot

A first meeting is for assessing the situation and discussing options, not for receiving a complete legal strategy for free. Pushing for detailed, case-specific advice before any agreement is in place sets the wrong tone. Use the time to understand your general position and decide whether to move forward.

Not Asking About Next Steps and Deadlines

Many legal matters carry strict time limits. Before you leave, ask whether any deadlines apply to your situation and what would happen if you delayed. Even if you decide not to hire that particular attorney, knowing the clock is ticking can save your rights.

Make the Meeting Count

Treat the consultation like the important meeting it is: arrive prepared, be candid, ask about fees, and assess whether this is someone you trust. Do that, and you’ll leave with a clear sense of your options — and whether this lawyer is the right one to help you pursue them.

How Hourly Billing Works

With hourly billing, you pay for the lawyer’s time, usually tracked in fractions of an hour. The rate varies widely depending on the attorney’s experience, location, and practice area. You may also be billed for the time of paralegals or junior associates at lower rates. Many attorneys ask for a retainer up front — an advance deposit that the firm draws against as work is performed, replenished as it runs down.

Hourly billing is common for matters where the amount of work is hard to predict, such as litigation, contested divorces, or complex business disputes. The upside is that you only pay for the work actually done. The downside is uncertainty: a matter that drags on costs more.

How Flat Fees Work

With a flat fee, you pay a single agreed price for a defined piece of work, regardless of how many hours it takes. Flat fees are popular for predictable, well-defined tasks — drafting a basic will, forming an LLC, handling an uncontested matter, or preparing certain immigration filings.

The appeal is predictability. You know the cost going in, and the attorney absorbs the risk if the work takes longer than expected. The key is clarity about what’s included. A flat fee for “preparing a contract” may not cover negotiating it, revising it three times, or litigating a dispute later.

Questions to Ask Before You Sign

• Is this an hourly rate, a flat fee, or a combination?
• What exactly does the fee cover, and what falls outside it?
• Are costs like court filing fees, postage, or expert witnesses billed separately?
• For hourly work, how often will I receive itemized invoices?
• For a retainer, what happens to any unused balance?

Get the Fee Agreement in Writing

Whatever the structure, ask for a written fee agreement, and read it before you sign. A clear agreement spells out the rate or flat fee, what services are included, how expenses are handled, and how billing disputes are resolved. Many states encourage or require written fee agreements, and a reputable attorney will provide one without being prompted.

Which Structure Is Right for You?

There’s no universally better option — it depends on the matter. For a discrete, predictable task, a flat fee gives you peace of mind. For an open-ended or contested matter, hourly billing may be the only realistic option, but you can manage it by staying organized, responding promptly, and keeping your questions focused. Some matters, like personal injury claims, may instead use a contingency arrangement, where the lawyer’s fee is a percentage of any recovery.

The smartest move is to talk openly about fees during your first conversation. A good attorney won’t be offended by money questions — they’ll expect them, and clear answers are a sign you’re dealing with someone you can trust.

1. The Other Side Already Has a Lawyer

If you’re negotiating against someone who has hired counsel — an opposing party in a divorce, a landlord, an insurance company, or a former business partner — you are at a structural disadvantage. Lawyers know procedural rules, deadlines, and leverage points that aren’t obvious to non-lawyers. When the other side lawyers up, matching that firepower is usually the smart move, not paranoia.

2. You’re Facing Criminal Charges or a Government Investigation

Any time your liberty is on the line, the stakes are too high to improvise. This includes arrests, criminal charges of any level, and contacts from investigators. In the United States, you have the right to remain silent and the right to counsel. Exercising both early — before you give a statement — protects you. If you can’t afford an attorney in a criminal case, you may qualify for a public defender.

3. Significant Money or Property Is at Stake

A dispute over a few hundred dollars often belongs in small claims court, where lawyers aren’t always needed. But when the numbers climb — a contract worth thousands, a home, a business, or a serious injury claim — the cost of a mistake dwarfs the cost of advice. A good rule of thumb: if losing would seriously disrupt your finances, get a professional opinion before you act.

4. The Paperwork or Process Is Beyond Your Comfort Zone

Some legal matters are mostly forms; others are full of strict deadlines, evidentiary rules, and filing requirements that vary by state and court. Estate planning, business formation, immigration, real estate closings, and litigation all have traps that aren’t visible until you’ve fallen into one. If you find yourself guessing about what to file, when, or how, that uncertainty is itself a signal.

5. You’ve Been Seriously Injured or Wronged

After a serious accident, a wrongful termination, or significant financial harm, you may be entitled to compensation — but the path to it is rarely simple. Insurers and large organizations have professionals whose job is to minimize what they pay. Many of these cases are handled on a contingency basis, meaning the attorney is paid a percentage only if you recover money, which lowers the barrier to getting help.

The Bottom Line

You don’t need a lawyer for every problem. But when the other side has one, when your freedom is at risk, when real money or property is involved, when the process overwhelms you, or when you’ve been seriously harmed, talking to an attorney is the responsible choice. Most offer an initial consultation so you can understand your options before committing. The cost of asking is almost always lower than the cost of guessing wrong.

I have watched more well-intentioned wills get unwound by homestead law than by almost any other doctrine in Florida probate. People assume that because they own the house, they can give it to whomever they please. Sometimes that is true. Often it is not. Getting this wrong does not just frustrate your wishes — it can drag a grieving spouse through litigation. So let’s walk through how homestead actually works and how to plan around it.

The Three Faces of Florida Homestead

The word “homestead” gets thrown around loosely, and that causes confusion. In Florida, the term carries three distinct legal meanings, and an estate plan has to account for all three.

• Creditor protection. Your homestead is exempt from forced sale by most creditors. A money judgment generally cannot reach it. This protection is among the strongest in the country and has no dollar cap on value — only a size cap (one-half acre within a municipality, up to 160 acres outside one).
• Tax benefits. The homestead exemption reduces your taxable assessed value, and the Save Our Homes cap under Article VII limits annual increases in assessed value to 3% or the change in the Consumer Price Index, whichever is lower.
• Restrictions on devise. This is the estate-planning face. The Constitution restricts your ability to give away the home in your will if you have a surviving spouse or minor child.

The first two are benefits. The third is a limitation, and it is the one that surprises families. You can have all three at once, but they don’t rise and fall together.

Who You Can — and Cannot — Leave the Home To

Here is the rule that catches people off guard. If you are survived by a spouse or a minor child, Florida law sharply limits how you may devise your homestead.

If you have a minor child, you cannot devise the homestead at all. Not to your spouse, not to a trust, not to anyone. The Constitution forbids it. The property passes under the default rules described below, full stop.

If you have a surviving spouse and no minor child, you have exactly two permissible options:

1. Leave the entire homestead to your spouse outright (in fee simple), or
2. Make no valid devise at all, in which case the default statutory result applies.

You cannot leave the home to your adult children and cut out your spouse. You cannot leave your spouse a “life estate by will” and give the rest to someone else. If you try, the attempted devise is void, and Florida Statute § 732.401 supplies the result instead.

The Default Split: Life Estate or the Section 732.401 Election

When a homestead is not validly devised — either because the owner tried to do something the Constitution prohibits, or simply died without addressing it — Florida Statute § 732.401(1) gives the surviving spouse a life estate in the home, with a vested remainder to the decedent’s descendants (the lineal descendants in being at the time of death), per stirpes.

That sounds tidy, but a life estate is often a poison pill. The surviving spouse must pay property taxes, insurance, and ordinary upkeep, while the remaindermen — frequently the decedent’s children from a prior marriage — wait in the wings and pay nothing. Sell the house? Everyone has to sign. Tap the equity? Good luck. In a blended family, this arrangement breeds exactly the kind of resentment that lands in probate court.

Recognizing that trap, the Legislature added an alternative in § 732.401(2). The surviving spouse may elect, within six months of the decedent’s death, to take an undivided one-half interest as a tenant in common instead of the life estate, with the descendants taking the other half. That election must be made affirmatively and on time; miss the window and the life estate locks in. It is one of the most important — and most overlooked — deadlines a surviving spouse faces.

How the Homestead Election Interacts with the Elective Share

For surviving spouses, homestead does not exist in a vacuum. Florida also gives a surviving spouse the right to an elective share — 30% of the elective estate under § 732.201 et seq. — designed to prevent disinheritance. A spouse who feels shortchanged by the estate plan may have overlapping rights: the homestead election under § 732.401, the elective share, the family allowance, and exempt property. These remedies interact in technical ways, and the value of the homestead interest can affect the elective-share calculation.

The lesson is that a surviving spouse should never assume the will is the last word. The combination of homestead protections and the elective share frequently delivers more than the four corners of the document suggest. This is precisely the kind of analysis where experienced probate counsel earns its keep, and it is a core focus of the estate work handled by the team at .

Waiving Homestead Rights: Prenups and Postnups

A spouse can waive homestead protections, but only in a writing that satisfies § 732.702. A valid waiver in a prenuptial or postnuptial agreement can free the owner to devise the home to children, a trust, or anyone else. For second marriages — common in South Florida’s retiree communities — a properly drafted marital agreement is often the cleanest way to honor commitments to children from a prior marriage without leaving a spouse stranded in a co-ownership tangle.

Two cautions. First, the waiver must be specific; a general waiver of “all marital rights” may or may not reach homestead, depending on its language. Second, full disclosure matters — agreements signed without adequate financial disclosure can be challenged. Drafting these is detail work, and the details decide cases.

Can You Put the Homestead in a Trust?

Yes — carefully. A revocable living trust is a popular probate-avoidance tool, and a homestead can be titled in one. Doing so generally does not forfeit the creditor-protection or tax benefits, provided the property remains the owner’s primary residence and the trust is structured correctly.

But the devise restrictions still apply. You cannot use a trust to do indirectly what the Constitution forbids you to do directly. If you have a minor child, the trust cannot validly distribute the homestead away from that child. If you have a spouse and no waiver, the trust must either pass the home to the spouse outright or it will trigger the § 732.401 default. A trust is a vehicle, not a loophole.

This is also where coordination with the rest of the plan matters. Families often pair the residence with broader planning tools — for example, a when a beneficiary receives government benefits, so that an inheritance does not disqualify them from Medicaid or SSI. The home may be the largest asset, but it is rarely the only one that needs thoughtful drafting.

Practical Steps to Protect the Family Home

If your goal is to keep the family residence in the hands you intend, with the least friction for those you leave behind, work through this checklist with counsel:

• Confirm who qualifies as a “spouse” and whether any child is a minor as of the planning date — the answer drives everything.
• Decide whether outright transfer to the spouse achieves your goals, or whether a marital agreement waiving homestead is appropriate for a blended family.
• Coordinate title — joint tenancy with right of survivorship and tenancy by the entireties pass outside the will and can simplify matters, but they have their own consequences.
• Mind the deadlines — the six-month homestead election and the elective-share timeline are unforgiving.
• Document a clear, properly executed plan rather than relying on assumptions about “my house, my rules.”

The same care that goes into a residence should extend to the foundational documents themselves. A precise — drafted to respect homestead limits rather than collide with them — keeps the estate out of court and your wishes intact. You can review the basics of estate documents on our wills overview, and learn how the local process works on our Florida probate page.

The Bottom Line for Surviving Spouses

Florida homestead law is unusually protective of the surviving spouse and minor children — sometimes more protective than the deceased owner intended. That protection is a feature, not a bug, but it only works smoothly when the estate plan is built around the constitutional rules instead of against them. If you are a surviving spouse, do not assume you must accept whatever the will says; your homestead and elective-share rights may give you far more. And if you are planning ahead, especially in a second marriage, get the homestead question right early. It is far cheaper to draft correctly than to litigate.

Every family’s situation turns on its own facts. If you have questions about protecting the family home or asserting a surviving spouse’s rights, reach out to our office to discuss your circumstances with an experienced Florida estate attorney.

Frequently Asked Questions

Can I leave my Florida home to my children instead of my spouse?

Not unless your spouse has validly waived homestead rights in a written agreement under Florida Statute § 732.702. If you are survived by a spouse and no waiver exists, the home must pass to the spouse outright or the default rules of § 732.401 apply — giving the spouse a life estate (or a one-half tenancy-in-common interest by election) with the remainder to your descendants. If you have a minor child, you cannot devise the homestead at all.

What is the surviving spouse's six-month homestead election?

Under Florida Statute § 732.401(2), instead of taking a life estate in the homestead, the surviving spouse may elect within six months of the decedent’s death to receive an undivided one-half interest as a tenant in common, with the descendants taking the other half. The election must be made affirmatively and on time, or the life estate becomes final.

Does putting my homestead in a revocable trust lose the creditor and tax protections?

Generally no. Titling a homestead in a properly structured revocable living trust does not forfeit Florida’s creditor protection or homestead tax benefits, as long as the property remains your primary residence. However, the constitutional restrictions on who you can leave the home to still apply — a trust cannot do what a will cannot.

How does homestead relate to a surviving spouse's elective share?

They are separate but overlapping rights. A surviving spouse may be entitled to the elective share (30% of the elective estate under § 732.201 et seq.), the homestead protections under § 732.401, family allowance, and exempt property. The value of the homestead interest can factor into the elective-share calculation, so a spouse should have all rights analyzed together rather than relying on the will alone.

Can a spouse waive Florida homestead rights in a prenuptial agreement?

Yes. Under Florida Statute § 732.702, a spouse may waive homestead rights in a written prenuptial or postnuptial agreement. The waiver should specifically reference homestead and be supported by adequate financial disclosure. A valid waiver lets the owner devise the home to children, a trust, or others — a common solution in second marriages.

Reviewing your Florida estate plan means re-reading your will, trust, beneficiary designations, and powers of attorney to confirm they still match your family, your assets, and current Florida law. As a rule, you should review your plan every three to five years and immediately after any major life event — a marriage, a death, a move to Florida, or a significant change in wealth. The cost of skipping that review is almost always paid by the people you leave behind, most often a surviving spouse.

I have sat across the table from too many widows and widowers holding a will drafted in another state, decades ago, naming people who have since died and leaving out the home they actually live in. The plan was not wrong when it was signed. It simply stopped being true. Below is how I think about when and why to revisit a Florida estate plan, with particular attention to the elective-share and homestead rules that catch surviving spouses off guard.

Why a Florida estate plan goes stale

An estate plan is a snapshot of three things on the day you sign it: your family, your property, and the law. All three move. Florida is a magnet for retirees and second marriages, which means the gap between the snapshot and reality tends to widen faster here than almost anywhere else.

Three forces age a plan:

• Your life changes. Births, deaths, divorces, remarriages, new businesses, and the sale of a home all reshape who should inherit and who should be in charge.
• Your assets change. A brokerage account that was modest in 2010 may now be the largest item you own — and it may pass entirely outside your will through a beneficiary form you have not looked at in years.
• The law changes. Florida’s probate and trust statutes are amended regularly, and federal estate-tax thresholds shift with each Congress. A plan engineered around an old tax exemption can produce results no one intended.

A plan that is never reviewed is not a plan. It is a guess about a future that has already arrived.

When to review your Florida estate plan: the trigger events

The calendar matters, but life events matter more. Think of the following as red flags that should send you back to your documents within weeks, not someday.

1. You married, remarried, or divorced

Marriage is the single biggest reason a Florida estate plan needs attention, and remarriage is the most dangerous of all. Under Florida Statutes § 732.301, a spouse you marry after signing your will (a “pretermitted spouse”) is generally entitled to a share of your estate as if you had died without a will, unless the will provided for the spouse, the omission was intentional and stated, or a valid marital agreement waives the right. People assume an old will controls. Often it does not.

Divorce cuts the other way. Under Florida Statutes § 732.507(2), a divorce automatically voids any provision in your will that benefits your former spouse, treating them as if they predeceased you. That sounds tidy, but it can leave gaping holes — an ex named as sole executor or trustee, with no named alternate, and a plan that no longer flows the way you intended.

2. A spouse, child, or named fiduciary died

When the person you named as personal representative, trustee, agent, or primary beneficiary dies, your plan is running on backups — if you named any. After a spouse passes, the survivor frequently inherits a plan built for two and now needs one built for one. This is the moment, not years later, to confirm successor fiduciaries and update beneficiaries.

3. You moved to Florida from another state

An out-of-state will is usually valid in Florida if it was validly executed where it was signed, but “valid” is a low bar. Florida does not recognize holographic (handwritten, unwitnessed) wills or nuncupative (oral) wills, even if your prior state did. Florida also imposes strict rules on who may serve as personal representative — an out-of-state friend may not qualify unless they are a close relative. And Florida’s homestead and elective-share protections are unlike almost anywhere else. New residents should treat relocation as a reason to redraft, not merely re-file.

4. Your net worth changed substantially

A windfall, an inheritance, the sale of a business, or a sharp rise in your investment accounts can push you toward federal estate-tax exposure or simply change how you want assets divided. The reverse is also true: if your estate shrank, a complicated trust structure built for a larger fortune may now be needless expense and friction for your heirs.

5. The law moved

Federal estate-tax law is the classic example. The lifetime exemption is historically high right now but is scheduled to change, and plans drafted around an older, lower number can misfire badly. Florida statutory amendments — to the elective share, to electronic wills under Florida Statutes § 732.522 and § 732.524, and to trust administration — are reason enough to have a professional re-read documents you signed before those rules existed.

6. Roughly every three to five years, even if nothing happened

Beneficiary forms drift. Account custodians merge. People you trusted become people you do not. A quiet periodic review catches the slow problems that no single event announces.

The surviving-spouse blind spot: Florida’s elective share

This is the part most do-it-yourself plans get wrong, and it is the reason a surviving spouse should never assume a will is the last word.

Florida does not let you disinherit a spouse. Under Florida Statutes § 732.201 and following, a surviving spouse may claim the elective share — 30% of the “elective estate.” The elective estate is far broader than the probate estate. It reaches revocable (living) trust assets, certain pay-on-death and transfer-on-death accounts, jointly held property, life insurance cash value, and some assets transferred within a year of death. The point is deliberate: you cannot route everything around the will to leave a spouse with nothing.

For a surviving spouse, the practical takeaways are sharp:

1. Even a will or trust that appears to cut you out may not actually do so — the 30% elective share can override it.
2. The election is time-sensitive. It must generally be filed within roughly six months of being served with the notice of administration, or before two years from the date of death, whichever comes first. Miss the window and the right can be lost.
3. Marital agreements matter. A valid prenuptial or postnuptial agreement, with proper financial disclosure, can waive elective-share rights under § 732.702. If you signed one, it needs to be part of any review.

For the spouse doing the planning, the elective share is a design constraint. Pretending it does not exist — by stacking assets into a trust for children from a first marriage, for instance — tends to produce exactly the litigation you hoped to avoid.

Homestead: the protection that can become a trap

Florida’s homestead rules deserve their own warning. The state constitution restricts how you may leave a homestead property if you are survived by a spouse or minor child. Under Florida Statutes § 732.401, if you are survived by a spouse and descendants, a devise of the homestead that violates the rules is invalid, and the surviving spouse takes a life estate (with descendants taking a remainder) — or the spouse may elect, within six months, to take a one-half interest as a tenant in common instead. Many couples discover this only after one of them dies, when a will leaving “the house to the children” collides with constitutional protection. A periodic review is where these conflicts get caught and fixed while both spouses can still sign documents.

What to actually look at during a review

A real review is not just re-reading the will. Walk through each layer:

• Last will and testament. Are the named personal representative and beneficiaries alive, willing, and qualified under Florida law? Are there named alternates?
• Revocable living trust. Is it actually funded? An unfunded trust accomplishes nothing and sends assets straight to probate.
• Beneficiary designations. Retirement accounts, life insurance, and annuities pass by designation, not by will. These override your will every time, so they must be reconciled with it.
• Durable power of attorney. Florida’s POA statute (Chapter 709) is demanding; older or out-of-state forms are often rejected by banks. Florida also generally does not recognize “springing” powers signed after the 2011 statute.
• Health-care directives. Designation of health-care surrogate and a living will under Chapter 765 — confirm the named surrogate is still the right person.
• Titling and homestead. How the home and major accounts are titled can quietly defeat the rest of the plan.

How South Florida second marriages complicate everything

Blended families are the rule here, not the exception, and they are where elective share, homestead, and beneficiary designations collide most violently. A common pattern: a husband wants his children from a first marriage to inherit, his second wife expects to keep the home, and the old beneficiary forms still name an ex-spouse. Each of those wishes is reasonable. Left unreviewed, they guarantee conflict.

The tools to harmonize them exist — QTIP and marital trusts, life-estate deeds, properly disclosed marital agreements, and life insurance used to equalize shares. Several of these techniques mirror approaches used in other states; for example, Morgan Legal’s New York team explains how can balance a surviving spouse’s right to remain in the home against children’s remainder interests, a structure Florida practitioners adapt around the homestead constraint. The same firm’s overview of the is a useful primer on why a will alone rarely does the whole job. The execution and statutory details differ by state, but the planning logic carries over.

Don’t review alone — and don’t wait for a crisis

The worst time to discover a stale estate plan is at a probate hearing, when the person who could have fixed it is gone. A surviving spouse confronting an outdated plan still has options — the elective share, the homestead election, and challenges to improperly executed documents — but every one of them runs on a deadline.

If you are doing the planning, schedule a review now and after each life event. If you are the survivor, get the documents in front of a Florida estate attorney quickly, because the clock on your rights starts the day you are served with notice. Our firm’s handles exactly these reviews, and you can read more on our wills and Florida probate pages or reach us through our contact page to schedule a sit-down.

A plan reviewed on a calm afternoon costs a fraction of a plan litigated in the months after a death. For a surviving spouse, that difference is not abstract. It is the home, the security, and the dignity the plan was supposed to protect.

Frequently Asked Questions

How often should I review my Florida estate plan?

Review it every three to five years as a baseline, and immediately after any major life event such as marriage, remarriage, divorce, the death of a spouse or named fiduciary, a move to Florida, or a significant change in your net worth. Beneficiary forms and successor-fiduciary designations drift over time, so even a quiet periodic review catches problems no single event announces.

Can my spouse really override my will in Florida?

Yes. Under Florida Statutes section 732.201 and following, a surviving spouse can claim the elective share, equal to 30% of the broadly defined elective estate, which reaches revocable trust assets, certain pay-on-death accounts, jointly held property, and more. You generally cannot disinherit a spouse, and the election must be filed within strict deadlines, typically about six months after service of the notice of administration.

Is my out-of-state will valid after I move to Florida?

Usually it is valid if it was properly executed in your prior state, but Florida does not recognize handwritten unwitnessed (holographic) or oral (nuncupative) wills, and it limits who can serve as personal representative. Florida’s homestead and elective-share rules also differ sharply from most states, so relocating is a strong reason to have your documents redrafted rather than just re-filed.

What happens to my will if I get divorced in Florida?

Under Florida Statutes section 732.507(2), a divorce automatically voids any provision in your will that benefits your former spouse, treating them as if they predeceased you. This can leave gaps, such as an ex-spouse named as executor with no alternate, so you should update your plan promptly after a divorce becomes final.

As a surviving spouse, what deadlines should I worry about?

Two clocks matter most. The elective-share election must generally be filed within about six months of being served with the notice of administration, or before two years from the date of death. The homestead election to take a one-half tenant-in-common interest instead of a life estate must generally be made within six months. Missing these windows can permanently forfeit valuable rights, so consult a Florida estate attorney quickly.

I’ve sat across the table from a lot of South Florida families who love their children and grandchildren but say some version of the same thing: “If I gave him $400,000 tomorrow, it would be gone by Thanksgiving.” Sometimes the worry is addiction or gambling. Sometimes it’s a chronically unstable marriage, a string of failed businesses, or a 19-year-old who simply isn’t ready. The good news is that Florida law gives you precise, durable tools to leave money to someone without leaving money at them.

Why an Outright Inheritance Often Backfires

When you name a beneficiary directly in a will, on a payable-on-death account, or as the designated beneficiary of a retirement account, that person receives the money with no strings attached. Once it lands in their hands, it is fully exposed. A creditor with a judgment can garnish it. A divorcing spouse can argue it became marital property when it was commingled into a joint account. A personal-injury plaintiff can reach it. And nothing stops the heir from spending the whole thing.

This matters even more for younger heirs. Under Florida law, a minor cannot legally take control of a significant inheritance. If a minor receives more than a modest amount (the threshold under Florida’s guardianship statutes in Chapter 744 is fairly low), a court-supervised guardianship of the property may be required. That means a judge, annual accountings, lawyers, and bond premiums—all paid from the child’s inheritance—until the child turns 18. At 18, whatever is left is handed over in a lump sum. Most parents I work with blanch at the idea of an 18-year-old getting a six-figure check the morning after their birthday.

The Core Tool: A Spendthrift Trust Under the Florida Trust Code

A spendthrift trust is the workhorse here. The “spendthrift” label refers to a specific provision—authorized by Florida Statutes section 736.0502—that restrains both voluntary and involuntary transfer of the beneficiary’s interest. In plain English, the beneficiary cannot sell, pledge, or give away their right to future distributions, and their creditors generally cannot reach the trust assets before those assets are actually distributed.

A properly drafted spendthrift clause is not just boilerplate. Florida courts enforce it, but they also recognize statutory exceptions. Under section 736.0503, certain creditors can still reach a beneficiary’s interest even with a spendthrift clause in place, including:

• A child, spouse, or former spouse with a judgment or order for child support or alimony;
• A judgment creditor who provided services for the protection of the beneficiary’s interest in the trust; and
• Claims of the State of Florida or the United States, to the extent provided by federal or state law.

So a spendthrift trust is powerful, but it is not a magic wall against every conceivable claim. The way you defeat those remaining gaps is by pairing the spendthrift clause with discretionary distribution standards—which is where the real protection lives.

Discretionary vs. Mandatory Distributions

If a trust says “distribute all income to my son quarterly,” that mandatory income stream can become a target. A creditor may be able to attach the distributions as they come due. But if the trust instead gives an independent trustee full discretion over whether to distribute anything at all, the beneficiary has no fixed, attachable right to demand money. Under section 736.0504, a creditor of a beneficiary of a discretionary trust generally cannot compel a distribution—even one subject to a standard like health, education, maintenance, and support—and cannot reach the interest by attachment.

That combination—a spendthrift clause plus broad trustee discretion—is the structural backbone of nearly every “problem heir” trust I draft in Florida.

Designing the Distribution Plan to Fit the Heir

The trust document is where you tell the future. You get to decide, in your own words, how the money is released. There is no single right answer; the design follows the heir.

Staggered Distributions for a Young Heir

For a young adult who simply needs time to mature, staggered distributions are a clean approach. A common pattern looks like this:

1. The trustee pays for health, education, maintenance, and support while the beneficiary is young;
2. One-third of the principal is distributed at age 25;
3. Half of the remaining balance at age 30;
4. The balance at age 35.

Spreading distributions across a decade gives a young person a chance to make a mistake with the first tranche and still learn from it before the next one arrives. If they blow through the age-25 distribution, the age-30 and age-35 money is still safely held back.

Lifetime Discretionary Trusts for a True Spendthrift

For an heir with an active addiction, compulsive spending, or a pattern of financial chaos, age-based distributions miss the point—turning 35 doesn’t cure a gambling problem. For those situations I usually recommend a lifetime discretionary trust with no mandatory payouts at all. The trustee can pay rent directly to a landlord, cover tuition, fund medical care, or buy a car titled in the trust’s name, all without putting cash in the beneficiary’s pocket. The inheritance supports the person’s life without ever being exposed to their worst impulses or their creditors.

These structures share a lot of DNA with planning for beneficiaries who have special needs or who require ongoing oversight—an area where the depth of trust drafting really shows. Firms that handle complex see these fact patterns constantly, and the drafting playbook translates directly to spendthrift situations.

Choosing the Right Trustee Is Half the Battle

A spendthrift trust is only as good as the person enforcing it. The trustee holds the discretion, says no when no is the right answer, and keeps the records that Florida law requires. Choosing the wrong trustee undoes everything.

Naming the beneficiary’s sibling can poison family relationships—few things strain a relationship like one adult child controlling another’s money. On the other hand, naming an independent professional or corporate trustee preserves the family peace but adds fees. A frequent compromise is a co-trustee structure: a trusted family member alongside a professional, or a family member with the power to remove and replace a corporate trustee (within limits, so the removal power doesn’t accidentally hand the beneficiary control).

Whoever serves needs to understand their duties under the Florida Trust Code, including the duty to administer the trust in good faith, the duty of loyalty under section 736.0802, and the recordkeeping and accounting obligations under section 736.0810. A trustee who ignores those duties can be held personally liable. If you want to understand how trustee selection and trust funding fit into a complete plan, a focused overview of is a useful starting point before you sit down to draft.

How This Interacts with a Surviving Spouse and the Elective Share

South Florida planning rarely happens in a vacuum, and spousal rights complicate the picture. Florida gives a surviving spouse an elective share—30% of the elective estate under Florida Statutes section 732.2065—and that right cannot simply be drafted away in a will. If you are in a second marriage and want to protect children from a first marriage with spendthrift trusts, you have to coordinate the trust plan with your spouse’s elective-share rights and with the homestead protections in the Florida Constitution.

This is where families get tripped up. You can build a beautiful lifetime trust for a spendthrift son, but if it inadvertently shortchanges your spouse below the elective share, the spouse can elect against the estate and force a recalculation that pulls assets back out of your carefully built structure. The fix is usually a marital trust or a properly drafted elective-share trust that satisfies the spouse’s statutory right while still funneling the children’s shares into protective trusts. Coordinating those two goals is a drafting exercise, not an afterthought—and a Florida-licensed attorney should run the numbers before anything is signed.

Local counsel matters here because homestead and elective-share rules are uniquely Floridian. A firm’s can map the elective share against your trust design so the two don’t collide.

Funding the Trust: The Step Everyone Forgets

A trust that exists on paper but holds nothing protects no one. After the document is signed, the trust must be funded—meaning assets are actually retitled into it or directed to it at death. For a spendthrift plan, that often means:

• Naming the trust (not the individual) as beneficiary of life insurance and retirement accounts, with careful attention to the post-SECURE Act payout rules;
• Retitling brokerage and bank accounts into a revocable living trust that pours into the protective subtrusts at death;
• Coordinating any payable-on-death and transfer-on-death designations so they don’t accidentally route money directly to the heir and bypass the trust entirely.

That last point is the silent killer. I have seen perfectly drafted spendthrift trusts defeated because a $300,000 IRA still named the spendthrift child directly. The beneficiary designation controls, the trust never sees the money, and the protection evaporates. Beneficiary forms must be audited against the trust, every time.

A Realistic Word on Limits

No structure is bulletproof. A spendthrift trust will not shield assets after they’ve been distributed to the beneficiary—once cash is in the heir’s checking account, it’s exposed again, which is exactly why discretionary, direct-pay distributions beat lump sums. Spendthrift protection also doesn’t apply to a trust the beneficiary created for themselves, and it yields to the statutory exception creditors discussed above. Honest planning means designing for these limits, not pretending they don’t exist.

Done right, though, a Florida spendthrift trust does something genuinely valuable: it lets you keep providing for someone you love long after you’re gone, with a steady hand on the controls. You can find more foundational material on our wills and estate documents page, see how these trusts move through administration on our Florida probate overview, or reach out for a consultation to talk through your family’s specifics.

Key Takeaways

• Use a discretionary spendthrift trust under Chapter 736 instead of an outright gift to protect young or financially risky heirs.
• Pair a spendthrift clause (section 736.0502) with broad trustee discretion (section 736.0504) for the strongest shield.
• Match the distribution plan to the heir—staggered ages for the immature, lifetime discretion for the truly spendthrift.
• Choose an independent or co-trustee who will actually enforce the terms.
• Coordinate the plan with your spouse’s elective share and Florida homestead rules, and never forget to fund the trust and audit beneficiary designations.

Frequently Asked Questions

What is a spendthrift trust in Florida?

A spendthrift trust is a trust containing a provision—authorized by Florida Statutes section 736.0502—that prevents the beneficiary from transferring their interest and generally blocks the beneficiary’s creditors from reaching trust assets before they are distributed. Combined with discretionary distribution terms, it protects an inheritance from a beneficiary’s poor judgment, creditors, and divorce claims while still allowing the trustee to provide for the beneficiary’s needs.

Can a spendthrift trust protect an inheritance from a divorce in Florida?

Often, yes. Assets held in a properly drafted discretionary spendthrift trust generally are not marital property and are not directly reachable by a divorcing spouse, especially if the trustee controls distributions and the funds are not commingled into joint accounts. However, a former spouse with a child support or alimony judgment falls within a statutory exception under section 736.0503 and may still reach certain interests, so coordination with a Florida attorney is essential.

At what age should a young heir receive their inheritance in Florida?

There is no legal default beyond the basics—a minor cannot control a significant inheritance, and at 18 an outright bequest is handed over in full. Most families instead use staggered distributions at ages such as 25, 30, and 35, or a lifetime discretionary trust if the heir struggles with money or addiction. The right age structure depends entirely on the individual heir’s maturity and circumstances.

Does a spendthrift trust affect my surviving spouse's elective share?

It can. Florida gives a surviving spouse a 30% elective share under section 732.2065 that cannot be eliminated by will. If your spendthrift trusts for children leave the spouse below that share, the spouse can elect against the estate and force a recalculation. The plan should be drafted so a marital or elective-share trust satisfies your spouse’s rights while still routing the children’s shares into protective trusts.

Who should serve as trustee of a spendthrift trust?

Choose someone willing and able to say no. Options include a professional or corporate trustee, an independent individual, or a co-trustee arrangement pairing a family member with a professional. Avoid naming the beneficiary’s sibling alone, which can damage family relationships, and never give the spendthrift beneficiary enough control to effectively reach the funds themselves.

I have sat across the table from too many surviving spouses and adult children who discovered, only at the funeral, that Dad’s prenup said one thing and his trust said another. The fix is almost always cheaper than the litigation. Here is how second-marriage estate planning actually works in Florida, and where the prenuptial agreement has to do the heavy lifting.

Why Second Marriages Need a Different Estate Plan

A first marriage usually has aligned incentives: both spouses want everything to pass to each other, then down to shared children. A second or later marriage rarely lines up so neatly. One or both spouses often bring children from a prior relationship, a home purchased before the marriage, a retirement account named for an ex, and a strong desire to provide for the new spouse without disinheriting their own kids.

Florida law does not assume any of that. Instead, it grants a surviving spouse a powerful bundle of rights that apply by default, regardless of what your will says, unless those rights are waived in writing. The three that catch second-marriage couples off guard most often are:

• The elective share — the surviving spouse’s right to claim 30% of the elective estate (Florida Statutes § 732.201–732.2155), which reaches far beyond the probate estate to include certain trusts, joint accounts, and pay-on-death assets.
• Homestead protection and descent — the constitutional and statutory rules (Fla. Stat. § 732.401) that control who can inherit the marital home, and that can override a will entirely.
• Family allowance, exempt property, and the spousal share of intestacy — smaller but real entitlements that survive a poorly drafted plan.

None of these are bad. They exist to keep spouses from being thrown out on the street. But in a second marriage where each spouse intends to leave the bulk of their separate wealth to their own children, these defaults can quietly redirect assets to a spouse the deceased never meant to enrich at the children’s expense.

The Florida Elective Share Is the Centerpiece

If you remember one statute from this article, make it the elective share. Under Florida Statutes § 732.2065, a surviving spouse may elect to take 30% of the “elective estate” instead of whatever the will or trust actually leaves them. The elective estate is intentionally broad. It captures probate assets, revocable trust property, certain transfers made within a year of death, the cash surrender value of life insurance, and the decedent’s interest in many jointly held and beneficiary-designated accounts.

That breadth is what surprises people. A husband who carefully left his investment portfolio to a credit-shelter trust for his children can still find that his second wife elects against the estate and pulls 30% out of the entire elective pool. The trust was real. The intention was real. But without a valid waiver, the statute wins.

How a Prenuptial Agreement Waives the Elective Share

Florida Statutes § 732.702 is the provision that lets spouses waive the elective share, homestead rights, intestate share, and more — but only if the waiver is done correctly. A waiver signed before marriage (a prenuptial or antenuptial agreement) does not require financial disclosure to be enforceable. A waiver signed after marriage (a postnuptial agreement) does require fair disclosure of the other spouse’s assets. That single distinction changes how I draft, and when I tell couples to sign.

The cleanest second-marriage plans I see were built in this order: the prenuptial agreement waives the statutory spousal rights, and then the estate plan affirmatively gives the spouse whatever the couple actually agreed to provide. The waiver clears the statutory floor; the will and trust build the house on top of it.

Coordinating the Prenup With the Will and Trust

A prenuptial agreement and an estate plan are two different machines that have to be bolted together. The prenup is a contract that says what each spouse gives up and what each spouse promises. The estate plan is the set of instruments — will, revocable living trust, beneficiary designations, deeds — that actually deliver on those promises after death. When they are coordinated, the prenup and the plan say the same thing in two voices. When they are not, you get contradiction, and contradiction is the fuel of probate litigation.

Here is the coordination checklist I walk second-marriage couples through:

1. Decide what the spouse actually receives. A lifetime income interest? The right to live in the home for life? A lump sum? A percentage? Put a number or a clear formula on it.
2. Match the prenup language to the estate documents. If the prenup promises a life estate in the residence, the trust or deed must create that life estate. Promises in a contract do not self-execute.
3. Confirm the waivers are specific. Florida courts read § 732.702 waivers carefully. A general “I waive all marital rights” clause is weaker than one that names the elective share, homestead, family allowance, exempt property, and intestate share by statute.
4. Fix the beneficiary designations. Retirement accounts, life insurance, and pay-on-death accounts pass by contract, not by will. They are the single most common place a second-marriage plan leaks.
5. Address homestead in writing. Florida’s homestead descent rules are unforgiving and have their own waiver requirements.

The QTIP Trust: Provide for the Spouse, Protect the Children

The workhorse tool for blended families is the marital trust, often structured as a QTIP (qualified terminable interest property) trust. The surviving spouse receives all income from the trust for life — and sometimes principal for health, support, and maintenance — but cannot redirect the remainder. When the spouse dies, whatever is left passes to the first spouse’s children, exactly as planned. It is the rare structure that genuinely serves both sides: the spouse is provided for, and the children are not disinherited by a later remarriage or a change of heart.

A QTIP only works, though, if the prenup permits it. If the surviving spouse can still elect the 30% statutory share, the carefully built trust can be partially unwound. The waiver and the trust are partners. Some families use lifetime planning tools to take pressure off the spousal-rights question entirely — strategies like can move a residence out of the probate estate while still letting the owner live there, an approach worth comparing against Florida’s homestead framework with counsel.

Homestead: The Florida Trap Nobody Expects

Florida’s homestead protection is famous for shielding the family home from creditors. Less appreciated is how homestead controls inheritance. Under Fla. Stat. § 732.401, if a person dies owning homestead property and is survived by a spouse and by descendants, the spouse does not simply inherit the house. The default rule gives the surviving spouse a life estate with a remainder to the descendants — or, by election, an undivided one-half interest with the descendants taking the other half.

For a second marriage, this is explosive. Imagine a husband who owns the home, has two adult children from his first marriage, and remarries. If he does nothing, his new wife and his children become co-owners of the house the moment he dies, locked together in a relationship none of them chose. The wife cannot sell freely; the children cannot occupy. It is a recipe for a partition lawsuit.

A prenuptial agreement can waive homestead rights, and a deed structured during life can change the result. But the waiver must be deliberate. This is one area where doing your own forms online almost guarantees a problem, and where reviewing your wills and homestead provisions with a Florida attorney pays for itself many times over.

Common Mistakes I See in Blended-Family Plans

• Signing the prenup but never updating the estate documents. The contract waives spousal rights, but the old will still leaves everything to the ex or to no one in particular. The waiver alone does not distribute assets.
• Forgetting beneficiary designations. A 401(k) or life insurance policy still naming a former spouse pays that former spouse, prenup or not. Federal law (ERISA) can even preempt state rules on retirement plans.
• Using a postnuptial agreement without disclosure. Because post-marriage waivers require fair financial disclosure under § 732.702, a casually drafted postnup is far easier to attack than a prenup.
• Relying on a “sweetheart will” that leaves everything to the new spouse. The new spouse is then free to leave it all to their children, and the first spouse’s kids receive nothing.
• Treating the prenup as a divorce document only. A good Florida prenup addresses death as carefully as it addresses divorce. Many older agreements are silent on the elective share entirely.

When the Surviving Spouse Has Concerns

This site focuses on surviving spouses and elective-share questions, so a word for that reader. If your spouse has died and you are holding a prenuptial agreement you signed years ago, do not assume it forecloses everything. Waivers can fail. A waiver of the elective share executed after marriage without proper financial disclosure may be unenforceable. A homestead waiver buried in a general clause may not meet the statute’s specificity. The 30% elective share has a strict procedural deadline — generally six months from service of the notice of administration, or two years from death, whichever is earlier — so a quick consultation matters.

Conversely, if you are the planning spouse and you want your prenup to hold, the time to confirm its validity is now, not after death when you cannot fix it. Estate planning for blended families is detailed work, and it is the same discipline whether the office sits in Florida or New York. Firms that handle sophisticated marital and incapacity planning — including specialized vehicles like a for protecting eligibility while preserving assets — bring that same coordination mindset to second-marriage planning. For Florida residents specifically, our handles the homestead and elective-share interplay described here.

Putting It All Together

Second-marriage planning in Florida is not about choosing your spouse over your children or your children over your spouse. It is about being explicit, in writing, in two coordinated documents, so the law does not choose for you. The prenuptial agreement clears the statutory rights that would otherwise apply automatically. The will, trust, deeds, and beneficiary designations then deliver exactly the inheritance you intend — to the spouse and to the children both. Done right, nobody is surprised at the funeral. Done in pieces, the elective share and the homestead rules write their own ending.

If you are entering a second marriage, recently remarried, or settling the estate of a spouse who was, the documents deserve a coordinated review. Reach out through our contact page or read more about Florida probate to see how these rules play out after death.

Frequently Asked Questions

Can a Florida prenuptial agreement waive the surviving spouse's elective share?

Yes. Under Florida Statutes § 732.702, spouses can waive the elective share, homestead rights, intestate share, family allowance, and exempt property. A waiver signed before marriage (a prenuptial agreement) does not require financial disclosure to be enforceable, while a waiver signed after marriage (a postnuptial agreement) does require fair disclosure of assets. The waiver should name the specific rights being given up rather than rely on general language.

What is the elective share in Florida and how much is it?

The elective share is a surviving spouse’s right under Florida Statutes § 732.201 et seq. to claim 30% of the decedent’s ‘elective estate’ instead of what the will or trust actually leaves them. The elective estate is broad, reaching probate assets, revocable trust property, certain joint and pay-on-death accounts, and the cash value of life insurance. It can override an estate plan unless the spouse has validly waived it.

How does Florida homestead law affect a second marriage?

Under Florida Statutes § 732.401, if you die owning your homestead and leave both a spouse and descendants, the spouse receives a life estate with the remainder passing to your descendants, or by election an undivided one-half interest. In a second marriage this can force a new spouse and children from a prior marriage into joint ownership of the home. Homestead rights can be waived in a prenuptial agreement, but the waiver must be specific.

Why do I need both a prenup and an estate plan for a blended family?

They do different jobs. The prenuptial agreement is a contract that waives statutory spousal rights and states what each spouse promises. The estate plan, including a will, trust, deeds, and beneficiary designations, actually delivers those promises after death. A prenup alone does not distribute assets, and an estate plan alone cannot waive the elective share or homestead descent. Coordinating both keeps the documents from contradicting each other.

What is a QTIP trust and why is it used in second marriages?

A QTIP (qualified terminable interest property) trust gives the surviving spouse income for life, and sometimes principal for support, while ensuring that whatever remains passes to the first spouse’s children when the surviving spouse dies. It lets you provide for a new spouse without disinheriting your own children. It works best when paired with a prenuptial agreement waiving the elective share, so the trust structure cannot be unwound by a 30% statutory election.