Entering into a second marriage can be a beautiful and exciting new chapter in your life, but it also brings its own set of legal and financial complexities—especially when it comes to estate planning. Whether you’re remarrying with children from a previous marriage or blending families, it's crucial to understand how Florida law applies to your situation. Without proper planning, there are several common estate planning mistakes that can cause confusion, conflict, or unintended consequences down the road. Below are some of the most frequent mistakes people make when entering into a second marriage in Florida, and how to avoid them.
One of the most common mistakes people make when entering into a second marriage is not updating their will or trust. After a second marriage, you may have different priorities for how you want your assets to be distributed. However, many people forget to revise their estate planning documents to reflect these changes. In Florida, if your will hasn’t been updated and you pass away, your assets could be distributed according to the laws of intestate succession—or worse, your previous spouse may still be named as a beneficiary.
Why It’s Important: Florida law provides that if you marry after executing a will, your new spouse has the right to claim a portion of your estate, even if they are not named in the will. To avoid unintentionally disinheriting your children from a previous marriage or leaving your new spouse with less than intended, it's essential to update your estate planning documents after remarriage.
Example: If you had a will in place from your first marriage that left everything to your children, but you marry a second time without updating your will, Florida’s elective share law may allow your new spouse to claim 30% of your estate, regardless of what the will says.
Florida has an "elective share" law, which gives a surviving spouse the right to claim a portion of the decedent’s estate if they are unhappy with what they received under a will. This can be particularly problematic for individuals entering a second marriage, especially if they have children from their first marriage and wish to leave their estate to them.
Why It’s Important: Even if your will specifies that your assets go to your children or another beneficiary, Florida law allows your spouse to claim up to 30% of your estate as part of their elective share, which could significantly impact your plans. This law overrides any provisions made in the will.
Example: If you want to leave your house or a portion of your savings to your children from your first marriage, your spouse may still be entitled to a share of that if they choose to exercise their rights under Florida's elective share law.
In a second marriage, particularly one that involves children from previous relationships, estate planning can become more complicated. Many people assume that their assets will automatically go to their children, but failing to plan for this scenario can result in a situation where your new spouse inherits the bulk of your estate, leaving your children without the inheritance you intended for them.
Why It’s Important: In Florida, if you die intestate (without a valid will), your assets will be divided between your spouse and children according to the laws of intestate succession. However, this distribution may not align with your wishes, especially if you want to ensure that your children from your previous marriage receive their fair share.
Example: If you have children from a prior marriage and you want them to inherit specific assets like a family heirloom or property, it’s crucial to specify this in your will. Without this, your new spouse may inherit the entire estate, and your children may end up with little or nothing.
A prenuptial agreement (or postnuptial agreement) is an often-overlooked estate planning tool, but it can be a crucial document for second marriages, especially if you want to protect assets accumulated from a previous marriage or protect your children’s inheritance rights. Without such an agreement, you may face complicated legal battles over asset distribution after death.
Why It’s Important: Florida law will automatically consider your new spouse as a legal heir to your estate, regardless of what your previous estate plan may say. A prenuptial agreement can clarify how your assets will be divided in the event of your passing or divorce.
Example: If you want to protect a family business or other significant assets for your children from your first marriage, a prenuptial agreement can explicitly state that these assets will go to your children, preventing any claims by your new spouse.
Many people think their will is the ultimate document when it comes to deciding how their assets will be distributed. However, accounts like life insurance policies, retirement accounts (such as 401(k)s and IRAs), and other financial accounts are governed by beneficiary designations, which can override the instructions in a will. If you’ve remarried, it's vital to ensure these designations are updated to reflect your current wishes.
Why It’s Important: If you’ve named your ex-spouse as the beneficiary of your life insurance policy or retirement account, those designations will still stand unless you update them. Even if your will specifies your new spouse or children as the recipients of your estate, the funds in these accounts will go to the person named on the beneficiary forms.
Example: If you have a life insurance policy that lists your former spouse as the beneficiary, and you die without updating it after your second marriage, your ex-spouse will receive the payout, and your new spouse may be entitled to nothing.
Estate planning is often an afterthought for many people, but for those entering a second marriage, it's particularly important to address the potential legal complexities in Florida. The state’s elective share law, intestate succession laws, and other regulations can drastically impact your estate plan if you don’t take the time to update your will, trust, and beneficiary designations.
By being proactive and avoiding these common mistakes—updating your will and trust, understanding the elective share law, planning for children from a previous marriage, considering a prenuptial agreement, and keeping your beneficiary designations current—you can ensure that your estate plan accurately reflects your wishes and protects the ones you love, no matter how many marriages you’ve had.
