When and Why to Review Your Florida Estate Plan: A Surviving Spouse Guide

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.