Estate planning is a way to ensure your assets go to the right people. However, for blended families, certain Florida laws may affect how and to whom you want your properties to go to, especially if you only have a simple will.
The elective share and your will
In Florida, a surviving spouse has a legal right to a portion of the estate regardless of what a will says. This is known as the elective share. It generally amounts to 30% of the elective estate, which includes assets passing outside of probate, such as those in:
- Revocable trusts
- Retirement accounts
- Jointly held bank accounts
Even if your will explicitly states that all assets should go to your children from another marriage, a spouse can typically override this by filing for the elective share. While this law seeks to prevent a spouse from being left with nothing, it can also unintentionally reduce the inheritance you intended for your children.
Homestead laws and property rights
Your primary residence, also referred to as your “homestead,” is also subject to certain state laws. Florida generally requires that if you are married, you must leave the home to your spouse. If you have minor children, the rules are even stricter: you generally cannot use a will to transfer the home at all.
If you attempt to leave your home directly to your adult children in your will while your spouse is still alive, the court will likely declare that specific provision invalid, unless your spouse signed a valid waiver or prenuptial contract. So, instead of your plan, Florida law will automatically step in: your children may receive ownership on paper immediately, but they will have no right to access, force a sale or live in the property until after your spouse passes away.
To avoid this arrangement, your spouse can “elect” to take a 50% ownership stake in the home, rather than waiting out the life estate. This can make them equal partners with your children (collectively), which can also allow them to sell or refinance the home more easily. However, your spouse must make this decision within a strict deadline.
Does your plan protect everyone?
Blended families are unique, and your estate plan should be too. If you are relying on a standard will, you might be missing important protections. It can be helpful to review your options carefully with an experienced legal professional.
