The Problem Florida Creates
Florida protects a surviving spouse by default, even ahead of your children. A surviving spouse can claim about 30% of your estate (the elective share), plus homestead and other rights, no matter what your will says, unless waived. So if you remarry and leave everything to your kids, your new spouse can override that and take their share. In a blended family, that is how the people you love most end up in court against each other.
The Fix: Prenup + Estate Plan Together
The clean structure is a prenup (or postnup) that waives or limits the elective share and homestead rights, paired with a plan that still provides for your spouse the way you intend. Often that means a QTIP trust: your spouse receives income for life, and whatever remains passes to your children. Your spouse is cared for; your kids are protected; nobody has to fight.
Provide for your spouse and protect your kids.
A free 30-minute consult maps the prenup and the estate plan together.
Book your free consultDon’t Forget the House
Florida homestead rules can give a surviving spouse a life estate or a half-interest in the home, which can derail your plan to leave it to your children. A prenup can include a homestead waiver, and we coordinate the home with a deed or trust so it lands where you intend.
Frequently Asked Questions
Why Is a Prenup So Important in a Second Marriage?
Because Florida protects a surviving spouse by default, even over your children. A surviving spouse can claim about 30% of your estate (the elective share) plus homestead and other rights, regardless of what your will says, unless those rights were waived. If you remarry without a prenup and leave everything to your kids, your new spouse can override that and claim their share. A prenup is how you and your spouse agree, in advance, on what each keeps and what passes to the children from your prior marriages.
Can I Still Provide for My New Spouse and My Kids?
Yes, and that is usually the goal. The common structure is a prenup that waives or limits the elective share, paired with a plan that gives your spouse what you intend (often a QTIP trust: your spouse receives income for life, and what remains passes to your children). That way your spouse is cared for and your kids are protected, instead of the two sides fighting after you are gone.
What Happens to the House?
Florida homestead rules can give a surviving spouse a life estate or a half-interest in the home, which can block your plan to leave it to your children. A prenup can include a homestead waiver, and we coordinate the home with a deed or trust so it goes where you intend. This is one of the most common, and most overlooked, second-marriage problems.
Is It Too Late if We’re Already Married?
No. A postnuptial agreement does the same job after the wedding. It is held to a higher standard than a prenup, but with full disclosure and independent counsel for each spouse, it is enforceable and is often exactly the fix a blended family needs.
Updated on June 9, 2026. Reviewed by Kevin D. Klagge, Esq., Fla. Bar No. 99502. General information about Florida law, not legal advice. Each spouse should have independent counsel. Do not send confidential information until we have agreed to represent you.