Florida Wills for Married Couples: What Should Your Will Include?

​By Richard L. Steinberg, Esq. | Steinberg & Associates, P.A.

​Many married couples begin with what seems like a simple plan: leave everything to the surviving spouse and, after both spouses are gone, divide the estate among the children. In Florida, carrying out that plan can require more than two matching wills. Asset ownership, beneficiary designations, revocable trusts, homestead law, and a surviving spouse's statutory rights can all affect the result.
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This article reviews the principal issues married couples should consider when preparing or updating Florida wills and explains how the will fits into the rest of the estate plan.

​A Will Is One Part of a Larger Plan

A will is usually the first document people associate with estate planning, but it does not control every asset at death. Life insurance, retirement accounts, payable-on-death accounts, and property owned jointly with a right of survivorship generally pass to the named beneficiary or surviving owner without regard to the will.

A will generally controls the probate estate: property titled in your individual name that does not pass through a beneficiary designation, survivorship ownership, trust, or other non-probate arrangement. For that reason, a coordinated estate plan usually requires reviewing your asset ownership and beneficiary designations alongside your will. See our Florida Estate Planning Checklist for a broader discussion of the documents that typically make up a Florida estate plan.
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• Example: A husband's will leaves his estate to his wife, but an IRA he opened before he met his wife still names his brother as beneficiary. The IRA generally passes under the beneficiary designation rather than the will. This is why beneficiary designations should be reviewed as part of the estate plan.

​Providing for Your Spouse and Naming Alternate Beneficiaries

Many married couples want their wills to leave property to the surviving spouse first, with children or other beneficiaries taking if the spouse does not survive. The will should also address what happens if another named beneficiary dies first.

Florida law contains default rules that can preserve some gifts for a deceased beneficiary's descendants, such as children or grandchildren, or redirect a failed gift into the residuary estate, meaning the property remaining after specific gifts and other required distributions are addressed. Those rules may not match the intent of the person making the will. Naming backup, or contingent, beneficiaries can make the intended distribution clearer and reduce the need to rely on statutory defaults.
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• Example: A will leaves a specific gift to an adult child, but the child dies first. Depending on the wording of the will and Florida's default rules, the gift may pass to that child's descendants, fall into the residuary estate, or be distributed in another way. Addressing that possibility in the will reduces uncertainty.

Children, Descendants, and Blended Families

When spouses share all of their children, leaving property to the surviving spouse and then to the children often reflects the couple's basic objectives. Blended families can require a different analysis.

Under Fla. Stat. § 732.102, if the deceased spouse has descendants who are not also descendants of the surviving spouse, the surviving spouse's intestate share, meaning the share provided by Florida law when there is no valid will governing the property, is generally one-half of the intestate estate, with the balance passing to the deceased spouse's descendants. The same one-half rule generally applies when all of the deceased spouse's descendants are shared with the surviving spouse, but the surviving spouse has one or more descendants who are not descendants of the deceased spouse.

In a blended family, the plan may need to provide for the surviving spouse while also preserving property for children from a prior relationship. Depending on the assets and the couple's objectives, a trust may be more appropriate than an outright gift to the surviving spouse.
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• Example: If a married person dies intestate leaving two children from a prior marriage and no children with the surviving spouse, Fla. Stat. § 732.102 generally gives one-half of the intestate estate to the surviving spouse and one-half to the decedent's descendants. That statutory result may differ from the couple's objectives and is one reason blended-family planning deserves particular attention.

​Florida's Protections for Surviving Spouses

Florida law gives a surviving spouse rights that can apply regardless of what the will provides. One of the most significant is the elective share under Fla. Stat. § 732.201. Under Fla. Stat. § 732.2065, the elective share is generally 30% of the elective estate, a statutory measure that is broader than the probate estate.

Under Fla. Stat. § 732.2035, the elective estate can include the probate estate as well as certain interests in homestead, jointly held property, payable-on-death accounts, revocable trust assets, retirement plan benefits, and the net cash surrender value of life insurance, among other property described by statute. Property already passing to your spouse may be applied toward satisfaction of the elective share. Your spouse may also waive the elective share and other spousal rights in a valid prenuptial or postnuptial agreement under Fla. Stat. § 732.702.
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• A well-known South Florida example involved Joe Robbie, founder and longtime owner of the Miami Dolphins. After Robbie died in 1990, his widow, Elizabeth Robbie, sought Florida's 30% elective share rather than relying solely on the trust arrangement established under his estate plan. Because much of the family's wealth was tied up in the Dolphins and the stadium rather than readily available cash, the elective-share claim became part of a larger dispute involving liquidity, estate taxes, and control of the family assets. The resulting financial pressures ultimately contributed to the Robbie family's sale of its remaining interest in the Miami Dolphins in 1994. The Robbie estate is frequently cited by Florida estate-planning lawyers as an example of why a married person's estate plan should account for the surviving spouse's statutory rights rather than assuming the terms of a will or trust will control by themselves.
  

A surviving spouse may also have rights to exempt property under Fla. Stat. § 732.402 and to a family allowance under Fla. Stat. § 732.403, which can provide limited support during estate administration. These rights operate separately from the basic distribution provisions of the will.

Florida's Homestead Restrictions

Florida homestead law can override an owner's wishes about who receives the home at death. Article X, Section 4 of the Florida Constitution, together with Fla. Stat. § 732.4015, restricts the devise of protected homestead when the owner is survived by a spouse or a minor child. In this context, a devise means a transfer of property at death by will and, for homestead purposes, can also include certain transfers through a trust.

If you are survived by a spouse and no minor child, you may devise the homestead to your spouse. If you are survived by a minor child, Florida law generally prohibits you from devising the protected homestead to anyone, including your spouse. When homestead is not validly devised and the deceased owner is survived by both a spouse and descendants, the surviving spouse generally receives a life estate, meaning the right to use and possess the property during the spouse's lifetime, while the descendants receive the remainder interest. The spouse may instead elect an undivided one-half interest as a tenant in common, meaning the spouse and the descendants would own separate fractional interests in the property.

If you have no surviving spouse or minor child, the constitutional restriction on devise does not apply. These rules can also apply when homestead is held in a revocable trust because Florida law treats certain trust dispositions of homestead as devises for this purpose.
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• Example: If a married owner of protected homestead is survived by a minor child, a will provision attempting to leave the owner's homestead interest outright to the surviving spouse may not take effect as written. The constitutional restriction must be considered as part of the estate plan rather than addressed only after death.

​Choosing a Personal Representative and a Guardian

In Florida, the personal representative is the person appointed by the probate court to administer a deceased person's estate. The personal representative is generally responsible for gathering and protecting estate assets, addressing valid creditor claims and expenses, handling required filings, and ultimately distributing the estate according to the will and Florida law.

The person making a will may nominate a personal representative, and Florida law generally gives priority to that nominee. Under Fla. Stat. §§ 733.302 and 733.304, a Florida resident may generally serve regardless of relationship to the decedent, while a nonresident must fall within specified family relationships. This can matter after a move to Florida, particularly when an older will names an out-of-state friend as a successor personal representative. Naming a qualified alternate can avoid a later qualification problem.

• Example: A couple prepares wills while living in New York and names a longtime New York friend as personal representative. After the couple moves to Florida, that friend may not qualify to serve under Florida law even though the nomination made sense when the wills were signed. A Florida review can identify that issue before it creates a problem during probate.

​If you have minor children, you should also consider nominating a guardian. Florida courts consider a parent's nomination in a will under Fla. Stat. § 744.312, although the court retains responsibility for determining the child's best interests. Depending on the circumstances, the person best suited to care for a child may not be the same person best suited to manage property for the child.

Tangible Personal Property and the Residuary Clause

Jewelry, furniture, artwork, collectibles, and other personal belongings sometimes generate disputes out of proportion to their financial value. Fla. Stat. § 732.515 permits a will to refer to a separate signed writing that disposes of qualifying items of tangible personal property.
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Unlike the will itself, that separate writing may be prepared or changed after the will is executed without re-executing the will, provided the statutory requirements are satisfied. Property that is not otherwise effectively disposed of falls into the residuary estate, meaning the property remaining after specific gifts, debts, expenses, and other distributions are addressed. Because the residuary clause often governs most of the probate estate, it deserves careful attention.

​Dying Without a Will in Florida

If a married Florida resident dies without a valid will, the probate estate passes under Florida's intestacy statutes rather than according to the person's stated wishes. Under Fla. Stat. § 732.102, a surviving spouse generally inherits the entire intestate estate if the deceased person leaves no descendants, or if all of the deceased person's descendants are also descendants of the surviving spouse and the surviving spouse has no other descendants.

In the blended-family circumstances described above, the surviving spouse generally receives one-half of the intestate estate and the deceased person's descendants receive the balance. Protected homestead can follow separate descent rules. When homestead is not validly devised and the deceased person is survived by both a spouse and descendants, the surviving spouse generally receives a life estate with the remainder to the descendants, subject to the spouse's statutory option to elect an undivided one-half interest as a tenant in common, as those terms are explained above.
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For a married person with children from a prior relationship, the intestacy rules can produce a result quite different from the distribution the family would have chosen in an estate plan.

Revocable Trusts, Pour-Over Wills, and Why a Will Alone Does Not Avoid Probate

A married couple may use a revocable living trust together with a pour-over will. Under Fla. Stat. § 732.513, the pour-over will can direct probate assets to the trustee of an existing trust.

A revocable trust avoids probate only for assets that are actually transferred to it during life or that otherwise pass to it outside probate. Assets remaining in a deceased spouse's individual name without another non-probate transfer mechanism generally remain probate assets, even if a pour-over will ultimately directs them into the trust. A will by itself does not avoid probate.

• Example: A couple signs a revocable trust but leaves a brokerage account titled in one spouse's individual name with no beneficiary designation. If that spouse dies owning the account individually, the account may still require probate before it can pass to the trust under the pour-over will. Creating a trust and funding it are separate steps.

For couples considering community property planning, including a Florida Community Property Trust, tax basis and probate avoidance are separate questions. See our Florida Step-Up in Basis article for a more detailed discussion of basis planning.

​Effect of Divorce and Remarriage

Florida law automatically revokes provisions favoring a former spouse upon divorce in a will under Fla. Stat. § 732.507 and generally does the same for provisions in a revocable trust under Fla. Stat. § 736.1105 and certain beneficiary designations governed by Fla. Stat. § 732.703, subject to statutory exceptions.

Employer-sponsored retirement and benefit plans can involve additional federal-law and plan-document issues, including the Employee Retirement Income Security Act (ERISA), which can override state law in some circumstances. Beneficiary designations should therefore be reviewed and updated directly after divorce rather than relying solely on Florida's automatic-revocation rules.
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Remarriage presents a different issue. A marriage after execution of a will does not revoke the will, but Fla. Stat. § 732.301 may give a later spouse a pretermitted-spouse share, generally the share the spouse would have received if the deceased spouse had died without a will, subject to the statute's exceptions. Existing estate-planning documents should therefore be reviewed when either spouse enters the marriage with a prior will or trust.

​When to Review Your Will

Marriage, divorce, the birth or adoption of a child, the death of a named beneficiary, personal representative, trustee, or other person named to serve under the plan, a move to or from Florida, and a significant change in assets are all sensible times to review a will and the beneficiary designations that operate alongside it.
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A periodic review is useful even without a major life event. Florida's homestead and surviving-spouse rules depend on the family's circumstances at death, and an older will may no longer fit the family, the assets, or current law.

​Frequently Asked Questions

Can I write my own will by hand in Florida?
A will is not invalid merely because it is handwritten, but Florida does not recognize an unwitnessed holographic will, meaning a handwritten will signed by the person making it but not executed with the required witnesses. A Florida will generally must satisfy the execution requirements of Fla. Stat. § 732.502, including the required signatures and two attesting witnesses. A handwritten document that does not satisfy those formalities is generally not a valid Florida will.

Can I leave our house to whomever I want?
Not necessarily. If the property qualifies as protected Florida homestead and you are survived by a spouse or a minor child, Florida's constitutional and statutory homestead restrictions can limit how the property may be devised.

We each have children from a previous marriage. Is a basic will enough?
Possibly. The answer depends on the family's objectives, assets, and how property is titled. Because blended families face different default rules from couples with only shared children, a trust may be useful when the goal is to provide for a surviving spouse while preserving assets for children from a prior relationship.

If I have a will, will my family avoid probate?
Not by itself. A will directs how the probate estate is administered and distributed. Assets properly held in a revocable trust, assets passing under a valid beneficiary designation, and certain jointly owned assets may pass outside probate.
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Does getting divorced automatically remove my ex-spouse from my will?
Florida law generally treats provisions in a will favoring a former spouse as void after divorce and has similar rules for revocable trusts and many beneficiary-designated assets. Exceptions and federal-law issues can apply, particularly with some employer-sponsored benefit plans, so beneficiary designations and estate-planning documents should be reviewed directly after divorce.
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How often should we update our wills?
Review the plan after major life events, including marriage, divorce, the birth or adoption of a child, a move, or a significant change in assets. Even without a major event, periodic review can confirm that the wills, beneficiary designations, and other documents still reflect the family's circumstances and current law.

​Related Articles

Florida Estate Planning Checklist: 7 Essential Documents Every Married Couple Needs
Step-Up in Basis in Florida: How It Works and Why It Matters for Estate Planning
The Florida Community Property Trust: A Powerful Tax Planning Tool for Married Couples

​Questions About Florida Wills and Estate Planning

From its Miami Beach office, Steinberg & Associates, P.A. assists clients throughout South Florida with wills, trusts, estate planning, probate administration, and trust administration.
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Legal Disclaimer: This article has been prepared by Steinberg & Associates, P.A. for general informational purposes only and does not constitute legal advice. The information contained herein is based on Florida law as of the date of publication and is subject to change. Every individual's circumstances are different, and nothing in this article should be relied upon as a substitute for advice from a qualified Florida attorney regarding a specific situation. Reading this article does not create an attorney-client relationship between you and Steinberg & Associates, P.A. or any of its attorneys. This article was prepared by Richard L. Steinberg, Esq. of Steinberg & Associates, P.A., with the assistance of artificial intelligence drafting tools.

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