Planning for Second Marriages in Florida

Dean Hanewinckel

Second marriages in Florida create a number of issues that, if not properly addressed, could make a shambles of your estate plan.

It is very common for a widow or widower to remarry. Most of these persons still plan to leave their estate to their children from the first marriage. Their trusts and wills distribute all of their assets to the children, so they see no need to change their estate planning.

However, Florida law has provisions designed to protect a surviving spouse (including a second spouse) which override the terms of a person's estate planning documents. If you are in a second marriage and wish to protect your children's inheritance, you must address these laws in your estate planning documents.

THE ELECTIVE SHARE

The first potential minefield is the elective share. Under the Florida Elective Share law, a surviving spouse is entitled to at least 30% of the deceased spouse's estate. This means 30% of all property owned individually by the deceased spouse, 30% of all property in the deceased spouse's revocable trust and 30% of the decedent's share of property owned jointly with another person.

Under the Elective Share law, the surviving spouse can elect to claim his or her right to this share.

Now, you may say, "I know my husband/wife and I agreed that neither of us would take anything from the other's estate." Even if this is true, the possibility exists that your surviving spouse may not be the one making the decision. If your spouse is incapacitated at the time of your death, all of his or her decisions would be made by the person appointed in a power of attorney or by a guardian. In either case, it is likely to be a family member of your spouse.

That family member or guardian may reason that your spouse will need the elective share to pay for his or her care.

Despite what you and your spouse talked about, they have the right to exercise the taking of the elective share.

HOMESTEAD AND SECOND MARRIAGES

The second scenario involves your homestead property. The Florida Constitution and Statutes give a surviving spouse rights to the decedent's homestead that overrule the terms of the decedent's will or trust.

Section 732.4015 of the Florida Statutes states that homestead cannot be devised by a will or trust if the decedent is survived by a spouse or minor child. It allows one exception: the homestead may be devised to the surviving spouse, if there is no minor child.

If you try to devise the property to someone other than your spouse, section 732.401 disallows such devise and mandates that the surviving spouse shall receive a life estate in the homestead and, at his or her death, the homestead shall go to the decedent's lineal descendants.  Or the surviving spouse may elect to take a one-half tenants-in-common ownership of the homestead. This occurs even if you wanted to leave your home to your parents, brother or some other third person.

THE SOLUTION - THE PRE-MARITAL AGREEMENT

Because these laws I mentioned can completely overrule a person's wishes and estate planning, the Florida legislature has provided a way around them.

That method is the pre-marital agreement. Yes, I know that many of you picture a pre-marital agreement as something Donald Trump and other rich folks have their attorneys draw up. This pre-marital agreement is different. The purpose of this document is for you and your spouse-to-be to waive your rights to the elective share, homestead and other rights created by marriage.

The pre-marital agreement is governed by Section 732.702 of the Florida Statutes.  The law states that the pre-marital agreement must be in writing and be signed by both husband-to-be and wife-to-be and two witnesses. By entering into this agreement, you can now leave your estate the way you wish without interference from Florida law.

If you wish to also provide for your spouse, you may. Only now you will do it on your own terms and not as the state mandates. In this case, you would simply include a provision in your will or trust providing for your spouse.

If you had a pre-marital agreement prepared in another state before moving to Florida, it is valid if it was valid in the state where you signed it. It would, however, be a good idea to have an attorney review it to make sure it accomplishes what you want.

Finally, you may be reading this article and saying, "Great! If only I knew about this before I got married." Don't despair. The same law provides for a post-marital agreement. This document works the same as the pre-marital, but requires both spouses to make a fair disclosure, in writing, to the other of the nature and value of their estate.