Blended families and estate planning in Florida: homestead, elective share, stepchildren and trusts
How Florida law divides an estate when a spouse and children from different relationships survive: the homestead limits, the 30 percent elective share, intestate shares, stepchildren and adoption, spousal waivers and trust tools, each with its statute.
In a blended family, Florida's default rules split the estate between a surviving spouse and children who may not be the spouse's own. Several of those rules cannot be changed by a will alone. This page states each rule, the section that creates it and the tools that work within it. The Sources section lists each citation, last checked October 17, 2026.
- Homestead: a decedent survived by a spouse or a minor child cannot devise the homestead to anyone except the spouse when there is no minor child (Art. X, § 4(c), Fla. Const.; § 732.4015(1)).
- Elective share: the surviving spouse of a decedent domiciled in Florida may elect 30 percent of the elective estate (§ 732.201, § 732.2065).
- Intestacy: if the decedent has a descendant who is not the spouse's, the spouse takes one-half of the intestate estate (§ 732.102(3)).
- Stepchildren: an unadopted stepchild is not among the heirs listed in § 732.103 unless the narrow rule in subsection (5) applies.
- Waivers: a spouse may waive the elective share, intestate share, pretermitted share, homestead, exempt property, family allowance and preference to serve as personal representative of an intestate estate, before or after marriage, in a writing signed before two subscribing witnesses (§ 732.702(1)).
Intestate shares when the families are mixed
When there is no valid will, or part of the estate is not disposed of by the will, § 732.102 sets the surviving spouse's share by whose descendants survive. Table 1 applies the four subsections.
| Who survives the decedent | Spouse's share | Source |
|---|---|---|
| Spouse, no descendant of the decedent | The entire intestate estate | § 732.102(1) |
| Spouse and descendants, all of whom are also the spouse's descendants, and the spouse has no other descendant | The entire intestate estate | § 732.102(2) |
| Spouse and at least one descendant of the decedent who is not the spouse's descendant | One-half of the intestate estate | § 732.102(3) |
| Spouse and descendants who are all the spouse's descendants, and the spouse has a descendant who is not the decedent's | One-half of the intestate estate | § 732.102(4) |
The rest of the intestate estate passes to the decedent's descendants under § 732.103(1). Source: §§ 732.102 and 732.103, Fla. Stat. (2026).
Homestead: the rule a will cannot override
The Florida Constitution provides that homestead "shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner's spouse if there be no minor child" (Art. X, § 4(c), Fla. Const.). Section 732.4015(2) applies the same limit to a trust: "owner" includes the grantor of a revocable trust described in § 733.707(3), and "devise" includes a disposition by trust of the part of the trust that would be homestead if the grantor held it (§ 732.4015(2)(a), (b)).
Table 2 shows where the home goes when it is not validly devised.
| Survivors | Result | Source |
|---|---|---|
| Spouse and one or more descendants | The spouse takes a life estate. The descendants in being at death take a vested remainder, per stirpes. | § 732.401(1) |
| Same survivors, spouse elects within 6 months of death and during life | The spouse instead takes an undivided one-half interest as tenant in common; the descendants take the other one-half. The election is irrevocable and is made by recording a notice of election. | § 732.401(2)(b), (d), (e) |
| Spouse, no descendant, no valid devise | The home descends as other intestate property. | § 732.401(1) |
| Spouse survives, no minor child, will leaves home to the spouse | The devise to the spouse is allowed. | § 732.4015(1) |
| Home held as tenants by the entireties or in joint tenancy with right of survivorship | Section 732.401 does not apply; title passes by survivorship. | § 732.401(5) |
Until the spouse elects, ownership expenses are allocated between the life tenant and the remaindermen under chapter 738; after an election they are shared in proportion to the shares (§ 732.401(3)). An owner joined by a spouse may transfer the homestead by deed to an estate by the entirety with the spouse (Art. X, § 4(c)).
Waiver. A spouse may waive homestead rights in a written agreement signed in the presence of two subscribing witnesses. If the agreement is signed after the marriage, each spouse must fairly disclose his or her estate to the other; no disclosure is required for an agreement signed before the marriage (§ 732.702(1), (2)).
Deeds that reserve a life estate. Section 732.4015 limits devises and dispositions by trust. No section of chapter 732 addresses a deed that reserves a life estate and a power to change the remainder. Whether such a deed avoids the homestead limit when a spouse or minor child survives is a title question to settle before relying on it. See the Lady Bird deed guide.
The elective share
A surviving spouse of a person who dies domiciled in Florida may elect a share equal to 30 percent of the elective estate (§ 732.201, § 732.2065). The election is filed on or before the earlier of 6 months after the spouse is served with the notice of administration or 2 years after the death; the court may extend the time for good cause (§ 732.2135(1), (2)).
The elective estate is larger than the probate estate. It includes the probate estate, protected homestead, payable-on-death and joint accounts, property in a revocable transfer, the cash surrender value of life insurance, and survivor benefits under retirement plans (§ 732.2035(1)-(8)). Property that already passes to the spouse counts toward the share at the values in Table 3.
| What the spouse receives | Value counted | Source |
|---|---|---|
| Outright property | Fair market value on the applicable valuation date | § 732.2095(2) |
| Life estate in protected homestead, or an elected one-half tenancy in common | One-half of the value of the property | § 732.2095(2)(a), (b) |
| Interest in an elective share trust with both a qualifying invasion power and a qualifying power of appointment | 100 percent of trust principal | § 732.2095(2)(d)1. |
| Interest in an elective share trust with a qualifying invasion power only | 80 percent of trust principal | § 732.2095(2)(d)2. |
| Interest in an elective share trust in all other cases | 50 percent of trust principal | § 732.2095(2)(d)3. |
| Interest in a trust that is not an elective share trust | Transfer tax value, capped at one-half of trust principal | § 732.2095(2)(f) |
An elective share trust gives the spouse the use of the property or all income for life, payable at least annually, with no one but the spouse able to distribute income or principal to anyone else during the spouse's life (§ 732.2025). A qualifying invasion power lets the spouse or trustee invade principal for the spouse's health, support and maintenance (§ 732.2095(1)(c)).
A lifetime-income trust for the second spouse therefore reduces, but does not by itself remove, the spouse's elective share claim. A spouse can waive the right in a prenuptial or postnuptial agreement (§ 732.702).
Spouses and children who come after the will
- Pretermitted spouse: a person who marries after making a will and survives the testator receives the share the spouse would take in intestacy, unless a prenuptial or postnuptial agreement provides for or waives it, the will provides for the spouse, or the will shows an intention not to provide (§ 732.301).
- Pretermitted child: a child born or adopted after the will is made and omitted from it receives an intestate share unless the omission appears intentional from the will, or the testator already had a child and left substantially all the estate to the other parent, who survives (§ 732.302).
- Marriage does not revoke a will: neither marriage, birth nor adoption revokes a will (§ 732.507(1)).
- Divorce: a will provision that affects the testator's spouse is void on dissolution of the marriage. The rule does not reach a will executed after the dissolution, a will that states a specific contrary intention, or a case where the dissolution judgment provides otherwise (§ 732.507(2)).
Stepchildren, adoption and ex-spouses
Section 732.103 lists the heirs in order: descendants, parents, siblings and their descendants, grandparents, then uncles, aunts and their descendants. A stepchild is not on the list. Subsection (5) reaches the kindred of the decedent's last deceased spouse only when the decedent has no kindred on either the paternal or maternal side (§ 732.103(4), (5)).
- Adoption: any person, a minor or an adult, may be adopted (§ 63.042(1)). For intestate succession, an adopted person is a descendant of the adopting parent (§ 732.108(1)).
- Adoption by a stepparent: adoption of a child by the spouse of a natural parent has no effect on the relationship between the child and that natural parent or the natural parent's family (§ 732.108(1)(a)).
- Provide for a stepchild by name: property effectively disposed of by will does not pass to heirs in intestacy (§ 732.101(1)). A stepchild who is not an heir receives only what the will, trust or beneficiary designation gives.
- Former spouse as beneficiary: a beneficiary designation for a former spouse is void as of the dissolution on payable-on-death accounts, transfer-on-death securities, life insurance, annuities, IRAs and employee benefit plans. The statute does not apply to the extent controlling federal law provides otherwise (§ 732.703(2)-(4)). Review each designation after a divorce.
Planning tools and the rule each one meets
Table 4 lists the tools used in blended-family plans and the Florida or federal rule that limits each.
| Tool | What it does | Rule it meets |
|---|---|---|
| Qualified terminable interest property (QTIP) trust | Gives the surviving spouse the income for life and names who receives the principal afterward. Federal law treats QTIP property as passing to the spouse for the marital deduction. | 26 U.S.C. § 2056(b)(7); elective-share credit in Table 3 (§ 732.2095(2)(d)) |
| Separate trust for each spouse's children | Each spouse's trust gives the survivor lifetime benefits, then passes principal to that spouse's children. | Revocable trust property is part of the elective estate (§ 732.2035(5)) |
| Prenuptial or postnuptial agreement | Waives or defines the surviving spouse's rights to elective share, intestate share, pretermitted share, homestead, exempt property, family allowance and preference as personal representative of an intestate estate. | § 732.702: written, signed before two witnesses; disclosure required only if signed after marriage |
| Deed to spouses as tenants by the entirety | Passes the home to the survivor by survivorship, outside the homestead descent rule. | Art. X, § 4(c); § 732.401(5) |
| Adoption of a stepchild | Makes the child a descendant of the adopting parent for intestate succession. | § 63.042(1); § 732.108(1) |
| Beneficiary designations that match the plan | Assets with a named beneficiary pass by the designation, not by the will. | § 732.703 |
Each tool also has income-tax and creditor effects outside this page. See will vs. trust in Florida and the elective share guide.
Federal estate tax in a second marriage
Federal law deducts from the gross estate the value of property that passes to the surviving spouse (26 U.S.C. § 2056(a)). The basic exclusion amount for 2026 is $15,000,000 (IRS, Estate tax; 26 U.S.C. § 2010(c)). The IRS states that the estate of a decedent survived by a spouse may elect to pass any unused exclusion to the surviving spouse on a timely filed return. See federal estate tax in Florida.
Sources
Last checked: October 17, 2026. Statutes are cited to the 2026 Florida Statutes on the Florida Senate site; the text was read on the Florida Legislature's Online Sunshine site.
- Art. X, § 4, Fla. Const.. Homestead; exemptions.
- §§ 732.102 and 732.103, Fla. Stat. (2026). Spouse's share of intestate estate; share of other heirs.
- §§ 732.401 and 732.4015, Fla. Stat. (2026). Descent of homestead; devise of homestead.
- §§ 732.201, 732.2025, 732.2035, 732.2065, 732.2095 and 732.2135, Fla. Stat. (2026). Elective share: right, definitions, elective estate, amount, valuation, time of election.
- § 732.101, Fla. Stat. (2026). Intestate estate.
- §§ 732.301, 732.302 and 732.507, Fla. Stat. (2026). Pretermitted spouse and children; effect of marriage, birth, adoption or dissolution.
- § 732.702, Fla. Stat. (2026). Waiver of spousal rights.
- § 732.703, Fla. Stat. (2026). Effect of divorce on disposition of certain assets at death.
- § 732.108, Fla. Stat. (2026). Adopted persons and persons born out of wedlock.
- §§ 63.042 and 63.172, Fla. Stat. (2026). Who may be adopted; effect of judgment of adoption.
- 26 U.S.C. § 2056 and 26 U.S.C. § 2010. Marital deduction; unified credit.
- IRS, Estate tax, accessed October 17, 2026.
What people ask us about this.
Can my new spouse override my will after I die?
Who gets the house when I die and leave a spouse and children from a prior marriage?
Do my stepchildren inherit if I have no will?
Can I adopt an adult stepchild in Florida?
What does a QTIP trust do for a blended family?
Does a prenuptial agreement waive the elective share?
Does my ex-spouse still receive my retirement account or life insurance?
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