Blended Families

If you are in a second marriage with children from the first one, you have probably had this thought at an hour when you should have been asleep. If something happens to me, will my spouse be all right, and will my children still receive what I meant for them to have? Florida will not do that part for you. When your documents do not say it clearly, the state fills the silence with rules written for a simpler family than yours.

What Florida does when you do not say

Without a will, Florida divides your estate for you. If you leave descendants who are not also your surviving spouse's descendants, your spouse takes one half and your descendants take the other half. It sounds even until you watch it happen: your spouse may not have enough to stay in the home, and your children wait on the sale of a house someone still lives in.

Stepchildren are not in the statute at all. Florida's order of intestate succession runs to descendants, then parents, then brothers and sisters, then grandparents. The stepdaughter you raised from the age of four is nowhere on that list. Unless you legally adopted her or you name her, she receives nothing.

The elective share is 30 percent, and it reaches past your will

Florida does not allow a spouse to be disinherited. A surviving spouse may elect an elective share equal to 30 percent of the elective estate, and the elective estate is far more than what passes through probate. It includes:

• Your probate estate and your interest in the protected homestead.
• Pay-on-death, transfer-on-death, in-trust-for and right-of-survivorship accounts.
• Property held in joint tenancy with right of survivorship or tenancy by the entirety.
• Property in your revocable living trust.
• The net cash surrender value of your life insurance immediately before death.
• Retirement and pension amounts payable to someone for surviving you, and most property you transferred in the year before your death.

So a plan that quietly moves everything to the children through a revocable trust, with the bank accounts titled jointly with a daughter, does not sidestep the elective share. It only makes the argument expensive. The election is due on the earlier of six months after your spouse is served with the notice of administration or two years after death.

There is a better use for this rule than worry. What you leave your spouse counts toward satisfying the elective share, including certain trust interests drafted to qualify. Planned on purpose, one set of documents can honor your spouse and your children at once.

The house has rules of its own

Homestead is not only a tax break. If you are survived by a spouse or a minor child, your homestead is not freely devisable. When you leave a spouse and descendants, your spouse takes a life estate with a vested remainder to your descendants living at your death. Your spouse may instead elect an undivided one half interest as a tenant in common, by recording a notice of election within six months after your death.

Beneficiary forms are the quiet disinheritor

Most of what you own does not pass under your will. Retirement accounts, life insurance and pay-on-death accounts follow the form you signed, sometimes during a marriage that has since ended, and divorce does not reliably clean those forms up. Naming your spouse on everything leaves your children whatever your spouse decides years from now. Naming your children on everything can invite an elective share claim. Read every form yourself.

The structure that usually fits

The answer is rarely a longer will. It is usually a trust that says two things at once: my spouse is supported for life, and what remains then goes to my children.

• Income, and principal when health and support require it, to your spouse for life, with the remainder to your children.
• An honest trustee choice. Making your spouse the sole trustee of your children's inheritance puts one person in an impossible position. A neutral trustee protects the relationship as much as the money.
• Separate shares for children of different marriages, so no one guesses what you meant by fair.
• Life insurance, which can fund one side of the family right away so the other side is not waiting on a house.

Trusting your spouse is not the issue. You are asking one person to remember your children twenty or thirty years from now, after a possible remarriage. Good structure is a kindness to everyone who is still here.

Personal property, where the real fights start

Florida lets you leave tangible personal property through a separate written list that your will refers to. You sign it, it names the items and the people with reasonable certainty, and you can change it later without touching anything else. It cannot cover property used in a trade or business. Use it. The ring, the tools, the photographs: that is what stepfamilies actually argue about.

Prenuptial and postnuptial agreements

Spousal rights can be waived, fully or partly, by a written agreement signed by the waiving spouse in front of two subscribing witnesses. The waiver can reach the elective share, the intestate share, homestead, exempt property and family allowance. Signed before the marriage, no financial disclosure is required. Signed after the marriage, each spouse must fairly disclose what they own.

One more trap: if you marry after signing your will, and the will neither provides for your new spouse nor shows an intention to leave that spouse out, your new spouse takes an intestate share anyway. A marriage should always send you back to your documents.

What to bring to the table

• Your children and your spouse's children, with the parent of each and a note on anyone legally adopted.
• Any prenuptial or postnuptial agreement, and any divorce judgment that requires you to leave something to someone.
• The deed to your home, so we can see how it is titled.
• A current beneficiary form for every retirement account, life insurance policy and annuity.
• Statements showing how each bank and brokerage account is titled.
• Your existing will or trust, including an old one from a prior marriage.
• A note about the belongings that carry sentimental weight.

Related reading

Our Florida estate planning checklist covers every document a complete plan contains, and our power of attorney guide covers the documents that keep your family out of a court guardianship if you get sick first.

This page is general information about Florida law, not legal advice about your family. Every blended family we meet has one detail that changes the answer.