Planning Your Estate with Children from a Prior Marriage? Use a Prenup!
Updated: Apr 3
For parents who are in a second (or subsequent) marriage, life planning takes on some unique aspects in Florida. These are not challenges per se, but they are issues that require careful consideration in order to ensure that your assets will be disbursed as you intend at the time of your death.
Practical and Legal Considerations for Estate Planning with Children from a Prior Marriage
In Florida, the default rule is that when one spouse dies and is survived by children, the surviving spouse generally receives half of the deceased spouse’s estate. If the deceased spouse is not survived by any children or grandchildren, the surviving spouse receives the deceased spouse’s entire estate. For some couples, this is fine (although there are still many reasons why it would be advisable to prepare an estate plan). However, many spouses will prefer a different outcome. This is particularly common, for example, when one spouse has children from a prior marriage.
Another issue that impacts spouses with children from prior marriages is Florida’s “elective share” law. Under this law, “[t]he surviving spouse of a person who dies domiciled in Florida has the right to a share of the elective estate of the decedent,” and this elective share is, “equal to 30 percent of the elective estate.” This gets complicated, but the short version is that the surviving spouse can claim up to 30 percent of a deceased spouse’s estate even if the deceased spouse’s life plan says otherwise.
Using a Prenup (or Postnup) to Overcome Florida’s Elective Share Law
With this background, you can see how estate planning with children from a prior marriage takes on certain additional dimensions. If your spouse has a statutory right to claim up to 30 percent of your estate regardless of the terms of your life plan, what are your options if you have different life planning goals?
This is one area where using a prenuptial agreement (or postnuptial agreement) can be particularly beneficial. This is because a spouse can contractually waive his or her right to the elective share. If you want your children from a prior relationship to receive a significant portion of your estate consistent with the terms of your life plan, you can use a prenup or postnup to make sure this happens.
Of course, there are other factors to consider as well. For example, the elective share only applies to the “elective estate,” not the entire estate. Certain types of assets, such as special needs trusts, are not subject to a surviving spouse’s elective share. Additionally, while there are many mutually beneficial reasons for couples to enter into a prenup or postnup, this can still be a touchy subject due to the common perception of these agreements as tools for “planning for divorce.”
If you have questions or would like some tips for discussing this subject with your spouse, I encourage you to schedule a confidential consultation.
Schedule a Confidential Estate Planning Consultation in Jacksonville, FL
For more information about incorporating a prenup or postnup into your life plan, call 904-329-7242 or send us an email to schedule a time to talk.
We look forward to hearing from you.
This post is for informational purposes only and does not provide legal advice. Please do not act or refrain from acting based on anything you read on this site. Using this site or communicating with Law Offices of Mark F. Moss, PLLC, through this site does not form an attorney/client relationship.