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Second-Marriage Prenups in Florida

Remarrying with kids from before? Without a prenup, Florida law can hand your new spouse about 30% of your estate, over your children.

Protect both, book a consult Prenup basics

Quick Overview

If you remarry in Florida without a prenup, your new spouse can claim about 30% of your estate (the elective share) plus homestead and other rights, regardless of what your will leaves to your children. A prenup that waives those rights, paired with a plan like a QTIP trust, provides for your spouse and still protects your kids. It comes down to handling the law, the plan, and the house together.

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Below, we walk through the 3 issues that decide whether this is the right move for you. Jump to any one:

  1. The Problem Florida Creates Florida hands a surviving spouse about 30% of your estate plus homestead rights, even over your kids, no matter what your will says, unless something stops it.
  2. The Fix: Prenup + Estate Plan Together A prenup that waives the elective share, paired with the right plan, can provide for your spouse and still protect your children. The structure is the part most people miss.
  3. Don’t Forget the House Homestead rules can give your spouse a life estate or half the home, blocking your plan to leave it to your kids. A waiver fixes it, but it is easy to overlook.

That’s the quick version. The details below are what decide your situation, and where the costly mistakes hide.

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.

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Don’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.

Does the Prenup Change Who Gets My Retirement Accounts and Life Insurance?

No, and this catches a lot of blended families. Retirement accounts and life insurance pass by the beneficiary form on file with the company, not by the prenup or your will. If the form still names someone from your old life, or no one at all, the waiver in your prenup does not change it; the form itself has to be updated. Workplace retirement plans add one more step: federal law gives a new spouse rights in a 401(k) or pension that can only be released on the plan’s own form, signed after the wedding. We build a checklist of every account and form into the plan so nothing is left pointing the wrong way.

Updated on July 12, 2026. Reviewed by Kevin D. Klagge, Esq., Fla. Bar No. 99502. Attorney Kevin Klagge represents families, businesses, and international clients in estate planning and international law, with a focus on Florida legal tools. He litigates estate and business issues in court. 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.