Planning for a second marriage in Florida means building an estate plan that honors a new spouse while still protecting children from a prior relationship, and a properly drafted prenuptial agreement is the legal instrument that lets you do both. Under Florida law, marriage automatically grants a surviving spouse powerful rights, including a share of the homestead and the option to claim an elective share of the estate. A prenuptial (or postnuptial) agreement is the only reliable way to modify or waive those rights in advance, so the wishes you put in your will or trust actually hold up.
If you split your year between Long Island and Florida, this gets more layered. Two states, two sets of marital-property rules, and two probate systems can pull a plan in opposite directions if the documents are not coordinated. This guide walks through how Florida handles second marriages, why prenuptial coordination matters, and what dual-state couples should watch for.
Why Second Marriages Change the Estate Planning Math
A first marriage usually has aligned interests: spouses leave everything to each other, then to shared children. A second marriage rarely works that cleanly. You may be bringing a house, a retirement account, or a business into the relationship. Your new spouse may have assets and children of their own. The classic risk is the “disinheritance by default” problem: you leave everything to your new spouse, trusting they will pass it on to your kids, and after you die that promise quietly evaporates.
Florida law leans heavily toward protecting the surviving spouse, which is generous in a long first marriage but can be a trap in a second one. Three Florida doctrines do most of the work here:
- The elective share. Under Florida Statutes Chapter 732, Part II, a surviving spouse can elect to take 30% of the “elective estate” instead of what the will leaves them. The elective estate is broad: it reaches beyond the probate estate into revocable trusts, certain joint accounts, and pay-on-death assets. You cannot simply write a spouse out of a will and expect it to stick.
- Homestead protection. Florida’s homestead rules (rooted in Article X, Section 4 of the state constitution) restrict how you can devise your primary residence if you are survived by a spouse or minor child. Try to leave the homestead to your children outright while married, and the gift can fail—your spouse may instead receive a life estate or a one-half tenancy in common.
- The intestate and pretermitted-spouse rules. If you marry after signing your will and do not update it, Florida’s pretermitted-spouse statute (Fla. Stat. § 732.301) can give your new spouse an intestate share anyway, overriding the document you thought controlled.
None of these are bad rules. They exist to keep spouses from being stranded. But in a second marriage they can override your intentions unless you address them head-on.
How a Florida Prenuptial Agreement Coordinates the Plan
A prenuptial agreement is where the estate plan and the marriage actually meet. In Florida, prenups are governed largely by the Uniform Premarital Agreement Act, adopted at Florida Statutes Chapter 61, Part II. A valid agreement can do exactly what the default rules will not let your will do alone: define what is separate property, set what each spouse receives at death, and waive specific statutory rights.
What a prenup can waive or modify
Done correctly, a Florida prenuptial agreement can address:
- The elective share — a spouse can waive the 30% claim, or agree to a fixed alternative provision instead.
- Homestead devise restrictions — a spouse can waive homestead rights in writing, which frees you to leave the residence to your children or to a trust.
- Rights to specific property — a business, an inheritance, or a brokerage account can be carved out as separate property that passes to your own children.
- Family allowance and exempt property — the smaller statutory entitlements a surviving spouse would otherwise claim during administration.
The key word is coordinate. A prenup that waives the elective share but is never reflected in an updated will or trust leaves a contradiction for your heirs to litigate. The agreement, the will, the revocable trust, and the beneficiary designations all need to tell the same story.
What makes a Florida prenup actually enforceable
Florida courts will set aside a prenuptial agreement that was not handled properly. To survive a challenge after death, the agreement generally needs:
- Voluntary signing — no coercion, and ideally not signed days before the wedding.
- Fair and reasonable disclosure of assets — or a valid, knowing waiver of disclosure. Hiding a major asset is the fastest way to get an agreement thrown out.
- Independent counsel for each party — not strictly required, but powerful evidence of fairness.
- Written and signed — Florida does not enforce oral premarital agreements.
Notice the disclosure standard is stricter for estate-related waivers than for divorce terms. Because waiving inheritance rights is so consequential, courts scrutinize whether the surviving spouse truly understood what they gave up. Skimping on the financial disclosure is the single most common reason these agreements collapse in probate.
The Dual-State Problem: Long Island Plus Florida
For snowbirds and out-of-state property owners, the hardest part is not Florida law in isolation—it is the seam where New York and Florida rules meet. New York is an equitable distribution state for divorce and uses its own elective-share rule (roughly the greater of $50,000 or one-third of the net estate under EPTL 5-1.1-A). Florida uses a flat 30% of a much broader elective estate. A prenup drafted for one state may read very differently when applied under the other.
Domicile is the pivot point. You can own property in both states, but you are domiciled in only one, and that determines which state’s law governs your movable assets and primary probate. Couples who keep a Long Island home and a Florida condo need to be deliberate about which state they treat as home, because filing a Florida homestead exemption, registering to vote, and getting a Florida driver’s license all point toward Florida domicile.
Coordination steps for two-state couples
- Pick a governing-law clause carefully. A well-drafted prenup states which state’s law applies and is written to be enforceable under both.
- Address each property separately. Real estate is governed by the law of the state where it sits, so the Long Island house and the Florida residence may need different treatment in the same plan.
- Plan around ancillary probate. Property held in your individual name in a second state usually triggers a separate probate there. A revocable living trust holding the out-of-state real estate is the standard fix.
- Reconcile the elective-share waivers. A waiver should be drafted to cover both New York’s and Florida’s versions, since you may not know which state will administer the estate years from now.
For the New York side of a dual-state plan, our colleagues at Morgan Legal handle the trust work that keeps out-of-state assets out of ancillary probate; their guidance on a Medicaid asset protection trust in New York is a useful starting point when long-term-care exposure is part of the picture. For couples on fixed income who also need to preserve benefits eligibility, their explanation of the pooled income trust in New York is worth reading before you finalize a Florida plan.
Tools That Make Second-Marriage Plans Work
A prenup sets the boundaries; the rest of the plan delivers on them. The most common structures we use for blended Florida families include:
The QTIP or marital trust
A Qualified Terminable Interest Property (QTIP) trust lets you provide your surviving spouse with income for life—and often the right to live in the residence—while guaranteeing that whatever remains passes to your children, not to your spouse’s heirs. This is the workhorse of second-marriage planning because it solves the “trust me to pass it on” problem without relying on trust.
The revocable living trust
Funding a revocable trust with both the Florida and out-of-state real estate sidesteps probate in each state and keeps the administration private. It also gives you a clean place to layer the QTIP provisions for the surviving spouse.
Coordinated beneficiary designations
Life insurance, IRAs, and 401(k)s pass by beneficiary form regardless of what your will says. After a second marriage, these are the documents most often forgotten—and an ex-spouse left on an old beneficiary form can override years of careful planning. Every designation should be reviewed against the prenup and the will.
If you want a fuller picture of how these pieces fit together on the Florida side, the team’s overview of estate planning in Florida covers the local procedures in more depth. You can also review our own wills and Florida probate resources to see how a plan moves from drafting to administration.
Common Mistakes in Florida Second-Marriage Planning
- Relying on a will alone. A will cannot override the elective share or homestead rules—only a valid waiver can.
- Signing the prenup at the eleventh hour. A document signed the week of the wedding invites a coercion challenge later.
- Forgetting beneficiary forms. The prenup and the will mean nothing for assets that pass by designation.
- Assuming a New York prenup automatically works in Florida. It may, but homestead and elective-share differences can create gaps.
- Never updating after the move. Establishing Florida domicile changes the rules; the plan should be re-reviewed once you make the switch.
When to Bring in an Attorney
If you are entering a second marriage with children, real estate, or retirement assets—and especially if you own property in both New York and Florida—coordinate the prenuptial agreement and the estate plan together, drafted by counsel who understands both states’ rules. The cost of getting this right is a fraction of the cost of a contested probate between a surviving spouse and the children of a first marriage. Reach out through our contact page to talk through your situation before you sign anything.
Frequently Asked Questions
Can a prenuptial agreement waive the Florida elective share?
Yes. Under Florida’s Uniform Premarital Agreement Act (Chapter 61, Part II), a spouse can validly waive the 30% elective share provided by Florida Statutes Chapter 732. The waiver must be in writing, voluntary, and supported by fair financial disclosure or a knowing waiver of disclosure, and it should be mirrored in your will or trust to avoid contradictions in probate.
Does my New York prenup work in Florida?
Often, but not always. New York and Florida use different elective-share formulas and very different homestead rules. A prenup drafted only for New York may leave gaps when applied in Florida, particularly around homestead devise restrictions. Have it reviewed and, ideally, drafted to be enforceable under both states’ laws if you split time between Long Island and Florida.
How does Florida homestead law affect leaving my home to my children?
Florida’s constitutional homestead protection limits how you can devise your primary residence if you are survived by a spouse or minor child. Without a written waiver, attempting to leave the homestead directly to your children can fail, with the surviving spouse instead receiving a life estate or a one-half tenancy in common. A prenuptial or postnuptial waiver is the standard way to preserve your intended gift.
What happens if I marry but never update my will in Florida?
Florida’s pretermitted-spouse statute (Fla. Stat. 732.301) can grant a spouse you married after signing your will an intestate share, even if the will does not mention them. Combined with the elective share, this means an outdated will rarely controls in a second marriage. Updating the plan after the wedding is essential.
What is a QTIP trust and why is it used in second marriages?
A Qualified Terminable Interest Property (QTIP) trust provides your surviving spouse with income for life, and often use of the home, while guaranteeing that the remaining assets pass to your own children rather than your spouse’s heirs. It is the most common tool for balancing care of a new spouse with protection of children from a prior relationship.
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