Quick Read Summary (TLDR)

In Florida, a deceased parent’s new spouse has powerful rights, like the 30% Elective Share and Homestead protections, which can put the children’s intended inheritance at risk. The most reliable way to safeguard the inheritance is for the parent and spouse to sign a valid, witnessed prenuptial or postnuptial agreement that waives the spouse’s rights. Alternatively, trust planning, such as using a QTIP trust, along with coordinating beneficiary designations, can limit the elective estate and provide for the spouse while preserving the principal for the children. As a last resort, children may also pursue a will contest based on undue influence.

Disinherited children should beware of “going it alone.” Hire an experienced estate planning and probate attorney by calling South Florida Law on (954) 900-8885 or reach out to us via our contact form.

When a parent dies in Florida widowing a new spouse, adult children from a prior relationship often find their inheritance at risk. Florida law gives surviving spouses powerful rights that can override a will, affect the family home, and consume assets the parent intended for the children. Understanding those rights and the tools that limit them is the first step toward preserving a child’s inheritance.

The 30 Percent Elective Share

Florida Statutes Section 732.201 gives every surviving spouse the right to claim an elective share equal to 30 percent of the deceased spouse’s elective estate. This right applies no matter what the will says or how long the marriage lasted.

The elective estate is broader than the probate estate. It includes solely owned property, revocable trust assets, jointly held property, retirement accounts, the cash value of life insurance, and certain transfers made within one year of death. Because the calculation captures so many categories, simply moving assets into a revocable trust or adding children as joint owners rarely defeats the claim. A surviving spouse generally has six months from receiving notice of administration, or two years after death, to file the election.

Florida Homestead Protections

Homestead descent is governed by the Florida Constitution and Florida Statutes Section 732.401. If the decedent is survived by a spouse and one or more descendants, and the home was not validly devised, the surviving spouse automatically receives a life estate in the homestead, and the descendants alive at the time of death take a vested remainder. In place of the life estate, the surviving spouse may elect an undivided one-half interest as a tenant in common, with the other half vesting in the descendants.

If the decedent is survived by a minor child, the Florida Constitution prohibits devising the homestead to anyone other than the surviving spouse, and any contrary devise is void. These rules significantly restrict a widow’s ability to take the family home outright when children are involved.

Prenuptial and Postnuptial Waivers

The most reliable way to prevent a surviving spouse from claiming an inheritance intended for the children is a valid waiver of spousal rights. Florida Statutes Section 732.702 allows a spouse to waive, in writing and in the presence of two subscribing witnesses, the elective share, intestate share, pretermitted share, homestead, exempt property, and family allowance. The waiver may be signed before or after the marriage.

Timing affects enforceability. A postnuptial waiver is valid only if each spouse makes a fair disclosure of their estate. A prenuptial waiver does not require disclosure, though transparency helps prevent later challenges. It is highly recommended that parents entering second marriages work with an experienced Florida estate planning attorney before signing any marital agreement.

Trust Planning for Blended Families

Where a marital waiver is not practical, trust planning can limit a surviving spouse’s reach. A Qualified Terminable Interest Property, or QTIP, trust can provide the surviving spouse with lifetime income while preserving the trust principal for the decedent’s children. Irrevocable trusts, coordinated beneficiary designations on life insurance and retirement accounts, and lifetime gifts can also direct assets away from the elective estate. Appointing a neutral, professional trustee is often wise, since an independent fiduciary reduces the risk of self-dealing and helps honor the deceased parent’s intent.

“A… QTIP… trust can provide the surviving spouse with lifetime income while preserving the trust principal for the decedent’s children.”

Challenging a Will Procured by the Widow

When a parent changes a will late in life to favor a new spouse, the children sometimes consider a will contest based on undue influence. Florida courts, however, typically do not apply the usual presumption of undue influence when the accused beneficiary is the surviving spouse. A line of Florida cases recognizes that close involvement in a spouse’s affairs is natural, not suspicious. That does not mean a contest is hopeless. Children may still succeed by presenting direct evidence that the widow isolated the parent from family, controlled financial matters, arranged the drafting attorney, and that the new will reflects the widow’s wishes rather than the parent’s.

South Florida Law

Florida’s elective share, homestead, and spousal waiver rules can quickly undo a parent’s plan to provide for children from a prior relationship. South Florida Law offers boutique-level attention and large-firm resources to families facing these challenges. Whether the need is a prenuptial or postnuptial agreement, a carefully drafted trust, or probate litigation to protect a disinherited child, our attorneys can help.

Contact us today to discuss options for safeguarding a family’s legacy by calling (954) 900-8885 or by reaching out via our contact form.