By your situation · Second marriages, stepchildren, and children from prior relationships

Blended families

How Florida intestacy, the 30% elective share, homestead and waiver rules apply when a spouse and children from a prior marriage or relationship both have claims, with each rule cited.

In a blended family the surviving spouse and the decedent's children from another relationship can each have statutory claims. Intestacy. The surviving spouse takes the entire intestate estate if all of the decedent's descendants are also the spouse's descendants and the spouse has no other descendants (§ 732.102(2), Fla. Stat. (2026)). The spouse takes one-half if one or more surviving descendants of the decedent are not descendants of the spouse (§ 732.102(3)), and one-half if all of the decedent's descendants are also the spouse's but the spouse has descendants who are not the decedent's (§ 732.102(4)). The part not passing to the spouse descends to the decedent's descendants (§ 732.103(1), Fla. Stat. (2026)).

Elective share. The surviving spouse of a person who dies domiciled in Florida has the right to an elective share (§ 732.201, Fla. Stat. (2026)). It equals 30 percent of the elective estate (§ 732.2065, Fla. Stat. (2026)). The elective estate includes the probate estate, the protected homestead, accounts and securities in pay-on-death, transfer-on-death, in-trust-for or survivorship form, the decedent's fractional interest in jointly held property, and property transferred to the extent the transfer was revocable by the decedent (§ 732.2035(1)-(5), Fla. Stat. (2026)). A will or a revocable trust therefore does not remove the spouse's right to elect. Property that passes to the spouse is applied first toward the share (§ 732.2075(1)(a), Fla. Stat. (2026)).

Trust for the spouse with a remainder to the decedent's children. A trust gives the spouse a life interest, and the remainder passes under the decedent's directions. A trust that meets the statutory definition of an elective share trust is credited toward the elective share at 100, 80 or 50 percent of principal depending on whether it contains a qualifying invasion power and a qualifying power of appointment (§ 732.2025(2), § 732.2095(2)(d), Fla. Stat. (2026)). A spouse's interest in any other trust is valued at its transfer tax value, capped at one-half of the trust principal (§ 732.2095(2)(f)). Federal law separately defines qualified terminable interest property for the estate tax marital deduction (26 U.S.C. § 2056(b)(7)).

What a written plan cannot override without the spouse's agreement. Spousal rights may be waived wholly or partly, before or after marriage, by a written agreement signed by the waiving party before two subscribing witnesses (§ 732.702(1), Fla. Stat. (2026)). Absent a valid waiver, the elective share, the pretermitted spouse share (§ 732.301, Fla. Stat. (2026)), and the homestead protections apply.

The implications

What this means for you

The elective share is 30 percent of the elective estate. It applies to a decedent who dies domiciled in Florida (§ 732.201, § 732.2065). The election is filed by the earlier of 6 months after service of the notice of administration on the spouse or 2 years after the death, and the surviving spouse or the spouse's attorney in fact or guardian of the property may petition the court for an extension, which tolls the time to elect (§ 732.2135(1)-(2), (4), Fla. Stat. (2026)).
Property left outright to a surviving spouse passes under the spouse's own will or intestacy. If the survivor dies without a will, the survivor's descendants take (§ 732.103(1)). A decedent's children from a prior relationship are not included unless they are also the survivor's descendants. A trust with a remainder to the decedent's children is the way the decedent's own instrument controls what happens after the spouse's death.
Stepchildren are not a class in the intestacy statute. Section 732.103 lists descendants, parents, siblings and their descendants, and grandparents and their kindred (§ 732.103(1)-(4), Fla. Stat. (2026)). To provide for a stepchild, the stepchild is named in a will, a trust or a beneficiary designation.
Written agreements govern spousal rights. A waiver can cover the elective share, intestate share, pretermitted share, homestead, exempt property and family allowance, and a waiver of all rights or equivalent language waives all of them unless the waiver provides otherwise (§ 732.702(1)). If signed after marriage, each spouse must make a fair disclosure of that spouse's estate (§ 732.702(2)). No other consideration is required (§ 732.702(3)).
Joint and beneficiary-designated property passes outside the will. Accounts in survivorship form, jointly held property, and payable-on-death accounts enter the elective estate (§ 732.2035(3)-(4), Fla. Stat. (2026)), and a person who receives property by right of survivorship or by beneficiary designation is a direct recipient (§ 732.2025(1), Fla. Stat. (2026)). Life insurance proceeds in excess of the net cash surrender value are excluded from the elective estate (§ 732.2045(1)(d), Fla. Stat. (2026)).
Homestead follows separate rules. The homestead cannot be devised if the owner is survived by a spouse or minor child, except it may be devised to the spouse if there is no minor child (Art. X, § 4(c), Fla. Const.; § 732.4015(1), Fla. Stat. (2026)). If not devised, a surviving spouse with surviving descendants takes a life estate with a vested remainder to the descendants, or may elect an undivided one-half interest as a tenant in common within 6 months (§ 732.401(1)-(2), Fla. Stat. (2026)).

The documents

Documents that apply

Each path below links to its page with the statutes and rules that apply.

Trust Package for a Blended Family

Trust and pour-over will with provisions for the surviving spouse and for children of a prior relationship

Two separate trusts (one per spouse)

Each spouse controls the trust funded with that spouse's property

The pitfalls

Common problems

Each item cites the statute or rule it comes from.

Leaving everything outright to the surviving spouse. The spouse then owns the property, and it passes under the spouse's will or intestacy. If the spouse dies intestate, the spouse's descendants take (§ 732.103(1), Fla. Stat. (2026)), and the decedent's children from another relationship take only if they are also the spouse's descendants.
Jointly titled accounts and property. An account in survivorship form passes to the survivor and is included in the elective estate (§ 732.2035(3), Fla. Stat. (2026)). The survivor is a direct recipient of property received by right of survivorship (§ 732.2025(1), Fla. Stat. (2026)).
A prenuptial or postnuptial agreement that does not meet § 732.702. A waiver must be in writing and signed before two subscribing witnesses by the waiving party (§ 732.702(1), Fla. Stat. (2026)). A waiver signed after marriage also requires fair disclosure of the other spouse's estate (§ 732.702(2)).
Planning that ignores the elective share. The spouse may elect 30 percent of the elective estate regardless of the will or trust (§ 732.201, § 732.2065, Fla. Stat. (2026)). Unsatisfied amounts are charged first to the probate estate and revocable trusts (§ 732.2075(2)(a), Fla. Stat. (2026)), so the share reduces what the decedent's chosen beneficiaries receive.
Leaving the homestead to children while a spouse survives. A devise of homestead to anyone other than the spouse is barred when a spouse or minor child survives (Art. X, § 4(c), Fla. Const.; § 732.4015(1), Fla. Stat. (2026)). The same limit applies to homestead held in the owner's revocable trust (§ 732.4015(2)).
Assuming a will or revocable trust made before the marriage controls. A spouse who marries after the will was made and survives the testator receives an intestate share unless the spouse was provided for by agreement or in the will, or the will shows an intention not to provide (§ 732.301, Fla. Stat. (2026)). Marriage does not revoke a will (§ 732.507(1)) or a revocable trust (§ 736.1105(1), Fla. Stat. (2026)).
Not revisiting the documents after a divorce. Dissolution of marriage voids provisions of a will or revocable trust that affect the former spouse and construes the document as if the spouse had died at the time of the dissolution, unless an exception applies (§ 732.507(2), § 736.1105(2)).

The FAQ

Frequently asked questions

Can spouses use one joint trust, or do they need separate trusts?+−

Florida law allows either. When more than one settlor funds a revocable trust, each settlor may revoke or amend the trust as to the portion attributable to that settlor's contribution, to the extent the property is not community property, and the trustee must promptly notify the other settlors when fewer than all revoke or amend (§ 736.0602(2)(b)-(c), Fla. Stat. (2026)). Each spouse's elective share right applies to either structure (§ 732.201, Fla. Stat. (2026)).

How much can a surviving spouse claim in Florida regardless of the will?+−

The elective share is 30 percent of the elective estate (§ 732.2065, Fla. Stat. (2026)). The elective estate includes the probate estate, protected homestead, survivorship and payable-on-death accounts, a decedent's fractional interest in jointly held property, and property in a trust the decedent could revoke (§ 732.2035(1)-(5)). Property that passes to the spouse by other means is applied first toward the share (§ 732.2075(1)(a)). The election must be filed by the earlier of 6 months after service of the notice of administration on the spouse or 2 years after the death (§ 732.2135(1)).

Can a trust give the spouse income for life and pass the principal to my children?+−

Yes. The surviving spouse's interest is credited toward the elective share at a percentage that depends on the trust terms. If the trust is an elective share trust, meaning the spouse is entitled for life to the use of the property or to all of the income at least annually, the spouse can require the trustee to make the property productive, and no one other than the spouse can distribute to anyone else during the spouse's life (§ 732.2025(2), Fla. Stat. (2026)), the credit is 100 percent with both a qualifying invasion power and a qualifying power of appointment, 80 percent with an invasion power only, and 50 percent otherwise (§ 732.2095(2)(d)). For any other trust the credit is the transfer tax value of the spouse's interest, capped at one-half of the principal (§ 732.2095(2)(f)).

What does a qualified terminable interest property election do?+−

It is a federal estate tax election. Qualified terminable interest property passes from the decedent, gives the spouse a qualifying income interest for life, and is the subject of an election made by the executor on the estate tax return (26 U.S.C. § 2056(b)(7)(B)). A qualifying income interest means the spouse is entitled to all the income at least annually and no one can appoint any part of the property to anyone else during the spouse's life (26 U.S.C. § 2056(b)(7)(B)(ii)). The federal basic exclusion amount for 2026 decedents is $15,000,000 (IRS), and Florida has no estate tax for deaths after December 31, 2004 (Florida Department of Revenue).

Can my new spouse give up elective share and homestead rights?+−

Yes, by a written contract, agreement or waiver signed by the waiving party in the presence of two subscribing witnesses (§ 732.702(1), Fla. Stat. (2026)). The rights that can be waived include the elective share, intestate share, pretermitted share, homestead, exempt property, family allowance and preference to serve as personal representative. If the waiver is signed after marriage, each spouse must make a fair disclosure of that spouse's estate, and no disclosure is required before marriage (§ 732.702(2)). No consideration other than the signing is required (§ 732.702(3)).

Do stepchildren inherit from me if I have no will?+−

The intestacy statute does not list stepchildren. After the spouse's share (§ 732.102, Fla. Stat. (2026)), the estate descends to the decedent's descendants, then to parents, then to siblings and their descendants, then to paternal and maternal kindred in the order stated in § 732.103(1)-(4), Fla. Stat. (2026). To provide for a stepchild, the stepchild must be named in a will, a trust or a beneficiary designation.

What happens to the house in a second marriage?+−

If the owner is survived by a spouse or minor child, homestead cannot be devised, except to the spouse when no minor child survives (Art. X, § 4(c), Fla. Const.; § 732.4015(1), Fla. Stat. (2026)). If not devised, the surviving spouse takes a life estate and the descendants take a vested remainder, or the spouse may elect an undivided one-half interest as a tenant in common by filing a notice of election within 6 months after the death (§ 732.401(1)-(2), Fla. Stat. (2026)). Protected homestead is excluded from the elective estate if the spouse validly waived homestead rights and received no interest in it (§ 732.2045(1)(i), Fla. Stat. (2026)).

Does marrying after signing a will or trust change it?+−

Marriage does not revoke a will (§ 732.507(1), Fla. Stat. (2026)) or a revocable trust (§ 736.1105(1), Fla. Stat. (2026)). A spouse who marries after the will is made and survives the testator receives an intestate share unless the spouse is provided for by prenuptial or postnuptial agreement or in the will, or the will shows an intention not to provide for the spouse (§ 732.301, Fla. Stat. (2026)). That share is taken from the estate in the order of abatement in § 733.805 (§ 732.301).

Does life insurance count toward the elective share?+−

Only the net cash surrender value of a policy on the decedent's life is included in the elective estate (§ 732.2035(7), Fla. Stat. (2026)). Proceeds in excess of the net cash surrender value are excluded, whether payable to the estate, a trust or any other person (§ 732.2045(1)(d)). To the extent paid to the spouse, proceeds of a policy on the decedent's life that was owned by someone other than the spouse are applied first toward the elective share (§ 732.2075(1)(d)).

In short

The surviving spouse's statutory rights in Florida apply to a blended family as they do to any other. The documents and the written agreements between the spouses determine how much of the estate remains for the decedent's own children.

Last checked: October 19, 2026

Sources

Each source below was read on the date shown. Statute links open the 2026 edition on the Florida Senate site.

§ 732.102, Fla. Stat. (2026), Spouse's share of intestate estate. The Florida Senate. Spouse's share when descendants are not all the spouse's Plain-English page on this site.
§ 732.103, Fla. Stat. (2026), Share of other heirs. The Florida Senate. Order of descent after the spouse's share Plain-English page on this site.
§ 732.201, Fla. Stat. (2026), Right to elective share. The Florida Senate. Surviving spouse's elective share right Plain-English page on this site.
§ 732.2025, Fla. Stat. (2026), Definitions. The Florida Senate. Elective share trust; direct recipient
§ 732.2035, Fla. Stat. (2026), Property entering into elective estate. The Florida Senate. What is included in the elective estate Plain-English page on this site.
§ 732.2045, Fla. Stat. (2026), Exclusions and overlapping application. The Florida Senate. Life insurance proceeds and waived homestead exclusions
§ 732.2065, Fla. Stat. (2026), Amount of the elective share. The Florida Senate. Elective share is 30 percent Plain-English page on this site.
§ 732.2075, Fla. Stat. (2026), Sources from which elective share payable; abatement. The Florida Senate. Credit for property passing to the spouse; order of contribution
§ 732.2095, Fla. Stat. (2026), Valuation of property used to satisfy elective share. The Florida Senate. Value of the spouse's interest in a trust
§ 732.2135, Fla. Stat. (2026), Time of election; extensions; withdrawal. The Florida Senate. Deadline to file the election Plain-English page on this site.
§ 732.301, Fla. Stat. (2026), Pretermitted spouse. The Florida Senate. Spouse who marries after the will Plain-English page on this site.
§ 732.401, Fla. Stat. (2026), Descent of homestead. The Florida Senate. Life estate and one-half election Plain-English page on this site.
§ 732.4015, Fla. Stat. (2026), Devise of homestead. The Florida Senate. Limit on devising homestead Plain-English page on this site.
§ 732.507, Fla. Stat. (2026), Effect of subsequent marriage, birth, adoption, or dissolution of marriage. The Florida Senate. Marriage and divorce effect on a will Plain-English page on this site.
§ 732.702, Fla. Stat. (2026), Waiver of spousal rights. The Florida Senate. Written waiver, witnesses and disclosure Plain-English page on this site.
§ 733.805, Fla. Stat. (2026), Order in which assets abate. The Florida Senate. Order of abatement Plain-English page on this site.
§ 736.0602, Fla. Stat. (2026), Revocation or amendment of revocable trust. The Florida Senate. Trust funded by more than one settlor Plain-English page on this site.
§ 736.1105, Fla. Stat. (2026), Effect of subsequent marriage, birth, adoption, or dissolution of marriage. The Florida Senate. Marriage and divorce effect on a revocable trust
26 U.S.C. § 2056(b)(7), Election with respect to life estate for surviving spouse. Cornell Law School, Legal Information Institute. Definition of qualified terminable interest property
Art. X, § 4, Fla. Const., Homestead; exemptions. The Florida Senate.
IRS, What's New: Estate and Gift Tax, Basic exclusion amount for year of death (2026: $15,000,000). Internal Revenue Service.
Fla. Dep't of Revenue, Florida Estate Tax, Florida estate tax. Florida Department of Revenue.

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