Why It’s Crucial for Your Parents to Have an Estate Plan — Especially If They’re Separated or Remarrying in Florida

1. What Happens If There’s No Estate Plan?

If a parent passes away in Florida without a valid will or trust, the estate is divided under Florida’s intestacy laws. This often means:

• The surviving spouse receives at least 50% of the estate, and
• Children from prior relationships may receive nothing or be forced into litigation.

Even with a will, unupdated documents, joint accounts, or unclear titles can override what your parent intended. Without proper planning, probate becomes more complicated, time-consuming, and expensive — often leading to confusion and conflict.

2. Florida Law and Second Marriages: A Risky Mix

Florida gives strong protections to surviving spouses, even in second (or third) marriages. These protections apply automatically, regardless of how long the marriage lasted or what your parent’s prior estate plan says.

Examples:

• A surviving spouse is entitled to 30% of the estate through Florida’s elective share law, even if a will tries to give them less.
• If the parent dies without a will (intestate), and has children from another relationship, the new spouse still gets half the estate — and all if no other children exist.
• Assets titled jointly with the spouse (bank accounts, real estate) bypass the will entirely and go directly to the new spouse.

This can leave adult children completely disinherited, even if that was never the parent’s intent.

3. What Adult Children Should Understand

If your parent is separated, divorced, or planning to remarry, you should know:

• Florida does not allow verbal promises (“Don’t worry, the kids will get the house”) to override default inheritance rules.
• Even if your parent never updates their will, Florida law may give the new spouse rights that override it.
• The only way to control who receives what — and when — is through formal estate planning.

4. How a Second Spouse Can Inherit Everything — Even If the Will Isn’t Updated

This surprises many families. Even if your parent never updates their will after remarriage, the new spouse may still end up with everything. Here’s how:

• Pretermitted Spouse Rule (Fla. Stat. § 732.301): If the marriage happened after the last will was signed, and the will doesn’t say anything about excluding the new spouse, Florida treats them as unintentionally omitted. They get an intestate share — usually 50%, even if the will says otherwise.
• Elective Share (Fla. Stat. § 732.201): A new spouse can choose to take 30% of the estate, regardless of what the will or trust provides — unless waived by prenuptial or postnuptial agreement.
• Joint Ownership and Beneficiary Designations: Bank accounts, real estate, or life insurance policies titled jointly or with the spouse listed as beneficiary pass automatically to them, no matter what the will says.
• No Will (Intestacy): If there’s no will at all, and there are children from another relationship, Florida law still gives the new spouse half of the estate.

So yes — even if your parent never added the new spouse to their will, the law fills in the gaps in their favor, not yours.

5. Common Scenarios That Lead to Conflict

• A father remarries late in life and doesn’t update his will. The new spouse invokes Florida’s pretermitted spouse law or elective share. The children are shocked to learn they were legally bypassed.
• A mother adds her new husband to the title of her home. Upon her death, he inherits the home automatically. Her children are disinherited and may have no legal claim.
• A parent promises to leave “something” to the children but never signs new documents. After death, the new spouse controls everything. The children are left empty-handed.

These are real-world Florida cases we handle regularly — and all could have been prevented with proper planning.

6. How to Protect Inheritances from a New Spouse

The good news: Florida law allows for custom estate planning that can protect both the new spouse and the children — if done in advance.

Here are some key tools:

• Prenuptial and Postnuptial Agreements: Limit the spouse’s rights to elective share or inheritance.
• Revocable Living Trusts: Direct exactly how and when assets pass — outside of probate.
• Enhanced Life Estate Deeds (Lady Bird Deeds): Keep control of the home during life but pass it automatically to the children after death.
• Clear Beneficiary Designations: Ensure retirement accounts, IRAs, and life insurance policies go where intended.
• Titling Assets Carefully: Avoid adding a new spouse to property or accounts without legal advice.

7. Estate Planning Tools Every Parent Should Consider

At a minimum, we recommend every parent in Florida have:

• A Revocable Living Trust
• A Last Will and Testament (coordinated with the trust)
• Durable Powers of Attorney for finances and healthcare
• A Living Will or Advance Directive
• Prenuptial or Postnuptial Agreement, if remarried or planning to remarry

These tools work together to preserve family wealth, prevent confusion, and ensure loved ones are protected.

8. Warning Signs That It’s Time to Act

Encourage your parent to speak with an estate planning attorney if:

• They are legally married but separated or considering divorce
• They are planning to remarry, especially later in life
• They have children from a prior relationship
• They haven’t updated their estate plan in 5+ years
• They own property or accounts jointly with someone new

Estate planning is not just about documents — it’s about protecting your family from future problems.

How We Help Families Preserve Their Legacy

At Bianchi Fasani Green Law, we regularly guide families in Miami Beach, Key Biscayne, Coral Gables, and Brickell through Florida’s estate and inheritance laws.

We:

• Structure custom estate plans for blended families and second marriages
• Draft prenuptial and postnuptial agreements to preserve family wealth
• Create trusts, deeds, and transfer strategies that protect children and prevent disputes
• Update outdated wills and coordinate trust-based planning to avoid probate

If your parent is remarried, separated, or thinking of changing their family structure — this is the moment to act.

Contact our office today to schedule a confidential estate planning consultation.