Guide · Estate Planning
Estate Planning for
Blended Families in Florida.
Second marriages, stepchildren, and the disputes that follow. Written by a litigator who handles the fights these plans cause, so yours never becomes one.
Short answer
If you are in a second marriage with children from a prior relationship, a simple will is the plan most likely to end up in court. Florida gives your spouse a 30% elective share and homestead rights that override your will, and gives your stepchildren nothing unless you name them. The plans that hold up use separate trusts, a marital trust that locks in the remainder for your children, and often a written waiver of spousal rights. We draft them the way a litigator would, because we have seen exactly where they break.
I spend a large part of my practice litigating estates, and blended families are where the fights come from. It is not because anyone is a villain. It is because Florida law hands a second marriage three tripwires, the elective share, homestead, and intestacy, and then most families walk over them with a plan built for a first marriage: everything to my spouse, then to the kids, and everyone will behave.
This guide covers what the statutes actually do, the classic ways blended-family plans fail, what the courtroom has taught me about those failures, and the toolkit that prevents them. If you want the quick diagnostic first, try who inherits without a will or which estate plan do I need.
At a glance
- Stepchildren under intestacy
- $0
- Spousal elective share
- 30%
- Homestead to spouse
- Life estate
- Waiver of spousal rights
- Prenup / postnup
- Foundation plan (will-based)
- $1,500 / $2,200
- Legacy plan (trust-based)
- $3,500 / $4,500
unless legally adopted (§ 732.108)
of the elective estate, § 732.201
or 50% election within 6 months, § 732.401
written, signed waiver, § 732.702
individual / couple, flat fee
individual / couple, flat fee
Why Blended Families Are the Highest-Conflict Estates
Four features of Florida law combine badly in a second marriage. Each one, on its own, is manageable. Together, they mean the default outcome almost never matches what anyone intended.
1. Stepchildren inherit nothing under intestacy
Florida's intestacy statutes distribute your estate to your spouse and descendants. A stepchild is not your descendant unless you legally adopted them (Fla. Stat. 732.108). Die without a will, and the stepdaughter you raised from kindergarten receives nothing, while under Fla. Stat. 732.102, your surviving spouse takes half and your biological or adopted children split the other half whenever either of you has children from a prior relationship. No judge has discretion to fix that. If you want a stepchild to inherit, a document has to say so.
2. The spouse's elective share overrides your will
You cannot simply write your spouse out. Under Fla. Stat. 732.201, a surviving spouse may elect to take 30% of the elective estate, and the elective estate is deliberately broad: it includes your probate estate, your revocable trust, pay-on-death and joint accounts, and certain other transfers. A will that leaves everything to your children invites your spouse to file the election, and the resulting accounting fight repriced every asset in some of the ugliest cases I have handled. The election deadline runs from the estate administration, so this fight arrives early, while grief is fresh.
3. Homestead rules trump the will entirely
Article X, Section 4 of the Florida Constitution restricts how you can devise your homestead: if you are survived by a spouse or a minor child, you cannot leave the home to anyone other than your spouse (and if a minor child survives, you cannot devise it at all). When the devise fails or you die intestate, Fla. Stat. 732.401 supplies the default: your spouse takes a life estate in the home and your descendants take a vested remainder, or the spouse may elect, within six months, an undivided one-half interest as tenant in common, with the descendants owning the other half. Read that again from a blended family's perspective: your widow and your children from your first marriage become co-owners of one house, bound together for years, whether they get along or not.
4. Beneficiary designations quietly cut out one side
Life insurance, retirement accounts, annuities, and bank pay-on-death designations pass by contract, outside your will and outside probate. These are usually the largest liquid assets in the estate, and they are the ones people forget to update after a remarriage. A 401(k) still naming the first spouse, or a new policy naming only the second spouse, will control over everything your will says. In a blended family, stale designations do not just misfire, they disinherit.
The Classic Failure Patterns
The same handful of plans produce most blended-family disputes. If your current plan is one of these, it is not that it might fail, it is that the failure mode is already written into it.
"I leave everything to my spouse, and they will take care of my kids."
The moment your estate passes to your spouse, it is legally theirs. Nothing in Florida law obligates a surviving spouse to leave anything to your children from a prior relationship. Your spouse can rewrite their will the week after your funeral, and if they remarry, their new spouse acquires elective-share and homestead rights in the very assets you meant for your kids. Your children would have no standing to complain, because a promise to "take care of them" is not enforceable.
Simple mirror wills between second spouses.
Mirror wills say the same thing in both directions: everything to my spouse, then to all the children when the survivor dies. The problem is that the survivor is free to change their will at any time. In practice, the surviving spouse often grows closer to their own children and drifts from the stepchildren, and the second will quietly cuts the first spouse’s kids out. By the time anyone finds out, the person who could have fixed it is gone.
The house titled jointly, wiping out the kids’ inheritance.
Retitling the home as tenants by the entirety or joint tenants with right of survivorship feels like a loving gesture. It is also a completed disposition: at the first death, the survivor owns the whole house outright, no matter what either will says. If the house is the biggest asset, one signature at a title company can disinherit an entire side of the family.
Beneficiary designations nobody updated.
Life insurance, IRAs, 401(k)s, and pay-on-death accounts pass by contract, outside the will and outside probate. A designation naming only the new spouse, or only the children, silently overrides the careful balance in the estate plan. These are the assets that most often cut one side of the family out without anyone intending it.
The litigator's view
What the Courtroom Teaches About Blended-Family Plans
Most estate planning attorneys have never defended the documents they draft. Paul Kogan litigates estate and trust disputes, which means he has cross-examined the witnesses, argued the elective-share accountings, and watched judges pick apart plans that looked fine on paper. These are the four failure modes that actually fill court files, and what each one teaches about drafting.
Undue-influence claims by children against the stepparent
The most common blended-family lawsuit: dad signs a new will or deed late in life that shifts everything to the second spouse, and the children sue claiming the stepparent procured it. Florida law presumes undue influence when a substantial beneficiary with a confidential relationship was active in procuring the document, and a spouse who drove the parent to the lawyer, sat in the meeting, and paid the bill checks every box. Even weak claims settle for real money because the estate pays to defend them. The fix is procedural hygiene: independent counsel for the person signing, the spouse out of the room, and a documented file showing the plan was the client’s own.
Elective-share fights that reprice the whole estate
A will that shortchanges the surviving spouse does not just get ignored, it triggers a statutory audit. The elective estate under Florida law reaches far beyond probate: revocable trust assets, pay-on-death accounts, joint property, and certain transfers made near death all count. I have seen estates where the family thought the spouse was limited to what the will gave her, then watched the elective-share election claw 30 percent out of the trust that was supposed to be the children’s. Valuing the elective estate is expensive, contested, and slow, and it happens exactly when the two sides of the family trust each other least.
Homestead surprises that unwind the deed and the will
Homestead is where confident plans die. A will that leaves the house to the children of a first marriage is simply invalid as to the home if a spouse survives, and the constitutional default kicks in instead. The reverse also happens: a deed signed without the spouse’s joinder is void, and the family discovers it years later when they try to sell. Litigating who holds a life estate, who owes the taxes and insurance, and whether the 50 percent election was made in time can keep a house in limbo for years while the widow lives in it and the children hold a remainder they cannot use.
Ambiguous "family" definitions
Documents that say "my children" or "our family" without naming names invite litigation in a blended family. Does "my children" include the stepson the decedent raised from age three but never adopted? Does "descendants" include a child from a relationship nobody discussed? I have handled disputes where the entire case turned on whether a term the drafter never defined included or excluded one person. Good blended-family documents name every intended beneficiary and expressly state who is excluded, so a court never has to guess.
The Planning Toolkit
None of these tools is exotic. The skill is in combining them so that your spouse is genuinely provided for, your children's inheritance is genuinely locked in, and no one has to trust anyone's future goodwill.
Separate trusts (his and hers)
Each spouse keeps their own revocable trust holding their own assets, with their own beneficiaries. At the first death, that spouse’s trust becomes irrevocable, so the survivor cannot redirect it. This is the cleanest structure for second marriages where each spouse has children and assets of their own, and it is what we most often recommend over a single joint trust.
A marital trust with remainder to your children (QTIP-style)
Instead of leaving assets to your spouse outright, you leave them in trust: your spouse receives the income (and support as needed) for life, and whatever remains passes to your children at the spouse’s death. The survivor cannot rewrite it, remarriage does not divert it, and for larger estates the same structure can qualify for the federal marital deduction as a QTIP trust. This is the single most useful tool for the "provide for my spouse but protect my kids" problem.
Prenuptial or postnuptial waiver of spousal rights
Under Fla. Stat. 732.702, spouses can waive the elective share, homestead rights, intestate share, family allowance, and exempt property by a signed written agreement. A waiver signed before the marriage requires no financial disclosure; one signed during the marriage requires fair disclosure. A waiver is the only way to make "everything to my kids" actually enforceable against a surviving spouse, and it is the backbone of most well-built second-marriage plans.
Life insurance as the equalizer
A policy naming your children lets you leave the house or the operating assets to your spouse without shortchanging your kids, or the reverse. Because insurance pays by beneficiary designation, the children receive cash quickly, outside probate, with no need to share ownership of anything with their stepparent. Co-ownership between a stepparent and stepchildren is where disputes incubate; insurance buys the separation.
Lady bird deed (enhanced life estate deed)
A lady bird deed lets you keep full control of your home for life, including the right to sell or mortgage it without anyone’s consent, with the property passing automatically at death to whoever you name. Used carefully, and with the constitutional homestead limits in mind, it can route the home to your children while avoiding probate. It is not a fit for every family, but in the right case it solves the homestead problem cheaply.
Separate Trusts or a Joint Trust?
First-marriage couples often use a single joint revocable trust, and it works because both spouses want the same beneficiaries. In a blended family, a joint trust concentrates all the risk in the survivor: whoever lives longer controls everything, including the deceased spouse's share, unless the trust is drafted to split and lock at the first death. That drafting is possible, but in our practice, separate trusts are usually simpler, cleaner in a later divorce or dispute, and easier for a court to enforce because there is never a question about whose assets funded what. If you are still weighing trust versus will as the foundation, start with our trust vs will comparison.
The Bottom Line
A blended-family plan has one job: remove every decision point where one side of the family must trust the other after you are gone. That means naming every beneficiary instead of using labels like “my children,” using trusts that become irrevocable at the first death instead of promises, pairing the plan with an elective-share and homestead waiver where the couple agrees to one, and putting cash from life insurance where co-ownership would otherwise force strangers into partnership. It costs more to build than mirror wills. It costs a fraction of one year of estate litigation. Flat fees for our standard plans are on the pricing page; custom trust design for blended families is quoted per matter.
Common questions
Do my stepchildren automatically inherit from me in Florida?
No. Under Florida intestacy law, stepchildren inherit nothing unless you legally adopted them. If you die without a will, your estate passes to your spouse and your blood or adopted descendants under sections 732.102 and 732.103, and a stepchild you raised for decades receives zero. If you want stepchildren to inherit, you must name them in a will, a trust, or a beneficiary designation.
Can I disinherit my spouse in Florida?
Not by will alone. A surviving spouse in Florida can elect to take 30 percent of the elective estate under section 732.201, which reaches most of what you own, including revocable trust assets and many non-probate transfers. The spouse also has constitutional homestead rights in your home. The only reliable way to disinherit a spouse is a valid written waiver, usually in a prenuptial or postnuptial agreement under section 732.702.
Who gets the house if it is my second marriage?
If the home is your Florida homestead, titled in your name alone, and you are survived by a spouse and descendants, the default under section 732.401 is that your spouse receives a life estate and your descendants receive the remainder. Your spouse may instead elect, within six months, an undivided one-half interest as tenant in common, with your descendants owning the other half. A will that tries to leave the homestead differently is invalid as to the home, unless your spouse validly waived homestead rights.
What happens if my spouse remarries after I die?
If you left assets to your spouse outright, those assets are fully theirs, and a new spouse acquires elective-share and homestead rights in them. Your children have no claim. If instead you left assets in a marital trust, your spouse receives income and support for life, but the principal is locked in for your children no matter who your spouse later marries. This is the main reason blended-family plans use trusts rather than outright gifts.
Are mirror wills enough for a second marriage?
Usually not. Mirror wills leave everything to the survivor, then to all the children. But the survivor can change their will at any time after the first death, and there is normally no enforceable contract stopping them. In practice, the surviving spouse often narrows the plan to their own children over time. If treating both sides of the family fairly matters to you, use separate trusts or a marital trust that becomes irrevocable at the first death.
How much does a blended-family estate plan cost?
At the Kogan Firm, a will-based Foundation plan is a flat 1,500 dollars for an individual or 2,200 dollars for a couple. A trust-based Legacy plan is 3,500 dollars for an individual or 4,500 dollars for a couple. Blended families usually need the trust-based plan, and custom trust design, such as separate trusts with marital-trust provisions or elective-share waivers, is quoted per matter after a consultation.
Keep reading
Paul Kogan
Fort Lauderdale Litigation Attorney, The Kogan Firm, P.A.
- 17+ years
- Florida Bar
- Martindale Peer Rated
Built by a Litigator
A blended-family plan that holds up.
Schedule a free consultation and we'll map your family, your assets, and the tripwires, then design a plan your heirs never have to fight over. Call (954) 281-8888 or book online at koganlaw.setmore.com.
This guide is for informational purposes only and does not constitute legal advice. Every family is different; elective-share, homestead, and waiver questions turn on your specific facts.