Blended families face a specific Florida problem: the law contains built-in protections for a surviving spouse that can unintentionally cut into what you wanted to leave children from a prior marriage. This guide explains those rules, how to plan around them, and what the process costs.
The Elective Share You Cannot Simply Disinherit
Under Florida Statutes Section 732.2065 and the sections that follow, a surviving spouse is entitled to an elective share equal to 30% of the elective estate, even if your will leaves them nothing. The elective estate is broad, reaching beyond probate assets to include certain trusts, jointly held property, and payable-on-death accounts. For a blended family, this means a will that leaves everything to your children can still be overridden by a spouse who elects against it. Planning has to account for that 30% rather than pretend it away.
Homestead: The Florida Curveball
Florida’s constitutional homestead protection (Article X, Section 4) restricts how you can leave your primary residence if you are survived by a spouse or minor child. If you are married, you generally cannot simply will the homestead to your children. Instead, the surviving spouse receives a life estate (or may elect a one-half interest), with the remainder to your descendants. Many blended-family disputes in Florida start here, because the new spouse can occupy the home for life while the children wait for the remainder.
The Tool That Solves Most of This: A Trust
A revocable trust under Chapter 736, often paired with a marital or QTIP-style sub-trust, is the standard fix. It can provide income and a place to live for your surviving spouse during their lifetime while guaranteeing that the remaining principal passes to your children, not to the spouse’s relatives. Because trust assets pass outside probate, this also keeps arrangements private and reduces the friction that fuels blended-family litigation. A prenuptial or postnuptial agreement waiving elective-share and homestead rights can reinforce the plan.
Cost and Timeline
A trust-based blended-family plan costs more upfront than a simple will because of the additional drafting and the need to retitle (fund) assets into the trust. That investment is usually far smaller than the cost of a contested probate. On the back end, a fully funded trust can begin distributing quickly without formal administration, while a will-only plan runs through Florida probate: summary administration for estates under $75,000 can close in weeks, and formal administration commonly takes several months to a year, longer if a spouse files an elective-share claim.
Talk With a Florida Attorney
Blended-family planning in Florida is about reconciling what you want with what the elective share and homestead rules require. A Florida estate planning attorney can structure trusts, beneficiary designations, and any marital agreements so both your spouse and your children are provided for without a courtroom battle. Consider a consultation before assuming a basic will is enough.
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