Avoiding common Florida estate planning mistakes means drafting documents that comply with Florida law, naming the right beneficiaries and fiduciaries, and updating your plan after major life changes like remarriage. The most damaging errors are not exotic—they are ordinary oversights: an outdated will, an unfunded trust, a beneficiary form that contradicts the will, and a homestead left to the wrong spouse. In blended families and second marriages, these mistakes don’t just cost money; they pit a surviving spouse against stepchildren in probate court.
I’ve sat across the table from too many families in the Keys who thought they had a plan. They had documents in a drawer. What they didn’t have was a plan that survived contact with Florida’s homestead rules, the elective share statute, and the reality of a household built from two prior marriages. Below are the mistakes I see most often, why Florida’s particular laws make them worse, and how to fix each one before it becomes a courtroom problem.
Mistake #1: Treating Your Will As “Set It and Forget It”
A will is a snapshot of your intentions on the day you signed it. Life moves. The will doesn’t—unless you make it.
The classic Florida failure is the will signed during a first marriage, never touched after a divorce and remarriage. Florida does have a partial safety net: under Florida Statute § 732.507(2), a divorce automatically voids the provisions of your will that benefit your former spouse, treating them as if they predeceased you. But that statute is a blunt instrument. It revokes gifts to the ex; it does not write in your new spouse, your stepchildren, or the trust you meant to create. The result is often a will that disinherits the person you actually love and routes assets to children or relatives by default.
Review your will after any of these events:
- Marriage, divorce, or the death of a spouse
- The birth or adoption of a child or grandchild
- A child reaching adulthood (your minor-guardian language may now be moot)
- A significant change in assets—selling a business, inheriting money, buying Florida real estate
- A move to Florida from another state (your old will may not be optimized for homestead and elective-share rules)
If you’ve relocated to the Keys from up north, don’t assume your New York or New Jersey will simply transfers. It is usually valid here, but “valid” and “well-suited to Florida law” are different things.
Mistake #2: Ignoring the Florida Elective Share in a Second Marriage
This is the single most under-appreciated trap for blended families, and it deserves its own section.
Florida law does not let you fully disinherit a spouse, even if your will says otherwise. Under the elective share statute (Florida Statutes §§ 732.201–732.2155), a surviving spouse can claim 30% of the elective estate. The elective estate is broad—it reaches far beyond your probate assets to include certain trusts, jointly held property, payable-on-death accounts, and other transfers. So the man who carefully left everything to his children from his first marriage, leaving his second wife “out” because “she’s taken care of,” has not actually accomplished that. She can elect against the estate and pull 30% off the top.
The honest fix is not to fight Florida law but to plan around it deliberately:
- Use a marital agreement. A valid prenuptial or postnuptial agreement can waive the elective share, but it must meet Florida’s requirements for disclosure and voluntariness.
- Provide for the spouse on purpose. A QTIP trust or a marital trust can support a surviving spouse for life while guaranteeing the remainder passes to your children—satisfying both your conscience and the statute.
- Coordinate the whole estate. Because the elective estate includes non-probate assets, you cannot solve this by simply retitling accounts. The pieces have to be counted together.
For families with more complex support needs—an heir on public benefits, or a spouse who will need long-term care—specialized vehicles such as a can preserve eligibility while still providing income, an approach worth discussing with counsel who handles cross-state planning.
Mistake #3: Misunderstanding Florida’s Homestead Rules
Florida homestead is famous for its creditor protection, but in estate planning it is equally famous for its restrictions. Many people don’t realize the Florida Constitution (Article X, Section 4) and Florida Statute § 732.401 limit how you can leave your homestead when you are survived by a spouse or minor child.
If you are survived by a spouse and have a minor child, you generally cannot devise the homestead at all—any contrary provision in your will is invalid, and the property passes by the statute’s formula. If you are survived by a spouse but no minor child, you can devise the homestead only to that spouse. The well-meaning second husband who leaves “the house to my kids” may find his will overridden: his surviving wife receives a life estate (or, if she elects, a one-half tenancy in common with the children) by operation of law.
This is precisely where blended families combust. The stepmother wants to stay in the home; the stepchildren want their inheritance liquidated. Florida’s default rules force them into shared ownership neither side wanted. The cleaner solutions—an enhanced life estate (commonly called a “Lady Bird”) deed, a spousal waiver of homestead rights, or planning the residence through a trust—must be set up in advance, with the homestead constraints front of mind.
Mistake #4: Creating a Trust and Forgetting to Fund It
A revocable living trust is one of the best tools available for avoiding probate in Florida and keeping a blended-family plan private. But a trust only controls the assets actually titled in its name. An unfunded trust is an empty box with an impressive label.
I review “completed” plans constantly where the trust document is beautiful and not a single asset was ever transferred into it. The house is still in the couple’s individual names; the brokerage account never got retitled. When the grantor dies, those assets go through probate anyway—the exact outcome the trust was meant to prevent—and the carefully drafted dispositive provisions may be bypassed entirely.
Funding a trust means doing the unglamorous follow-through:
- Record new deeds transferring real estate into the trust (mindful of homestead rules above).
- Retitle bank and brokerage accounts in the trust’s name.
- Update beneficiary designations where the trust is meant to receive the asset.
- Assign business interests and other personal property as appropriate.
- Keep a “pour-over” will as a backstop for anything missed.
If you’re weighing whether a trust is even the right vehicle for your situation, our overview of wills and trusts options walks through the trade-offs before you commit to drafting.
Mistake #5: Letting Beneficiary Designations Override Your Estate Plan
Your will and trust do not control your retirement accounts, life insurance, or payable-on-death bank accounts. The beneficiary form does. This is the mistake that quietly undoes more estate plans than any drafting error, because the forms were filled out years ago and never revisited.
The recurring blended-family disaster: a 401(k) or life insurance policy still names a first spouse, or names “my children” without contemplating the new marriage. No matter what the will says, that money goes to the named beneficiary. I have watched a six-figure life insurance payout land in the lap of an ex-spouse because a form from 2009 was never updated. There is rarely a remedy after death.
Pull every beneficiary designation—retirement plans, IRAs, annuities, life insurance, POD and TOD accounts—and confirm each one matches your current wishes and coordinates with the rest of your plan. For Florida residents who also need to protect assets against future long-term-care costs, beneficiary planning often needs to work in tandem with protective trusts; the mechanics of a illustrate how irrevocable structures interact with beneficiary designations and the five-year look-back, principles that apply whether you plan in New York or Florida.
Mistake #6: No Plan for Incapacity, Only for Death
Estate planning is not only about who gets what when you die. It is also about who speaks for you while you’re alive but unable to speak for yourself. A plan with a will and trust but no incapacity documents leaves a gaping hole.
Every Florida adult should have:
- A durable power of attorney (Florida Statute Chapter 709)—and note that Florida requires specific authority to be enumerated; a vague form will not let your agent fund a trust or make gifts.
- A designation of health care surrogate (Chapter 765) to make medical decisions.
- A living will expressing your end-of-life wishes.
In second marriages this matters enormously. Without a health care surrogate, Florida’s default decision-makers can leave a new spouse fighting with adult stepchildren over a hospital bed. Name your people, in writing, before the crisis.
Mistake #7: DIY Documents and Improper Execution
Florida has strict formalities. Under Florida Statute § 732.502, a will must be signed by the testator and by two witnesses, each in the presence of the other. A self-proving affidavit (under § 732.503) lets the will be admitted to probate without tracking down those witnesses years later. Online form kits frequently get the witnessing wrong, omit the self-proving language, or use out-of-state boilerplate that conflicts with homestead and elective-share rules. A document that fails execution requirements can be thrown out entirely—and you won’t be around to fix it.
When to Bring in a Florida Estate Planning Attorney
You should consult counsel any time your situation involves a second marriage, stepchildren, Florida real estate, a business, a beneficiary with special needs, or assets in more than one state. Blended-family planning in particular is less about filling in blanks and more about reconciling competing interests so that your spouse is protected, your children are not disinherited by accident, and your home doesn’t become a battleground.
If you’d like a deeper look at how comprehensive planning is structured, see our breakdown of , and review what to expect from the Florida probate process so you understand exactly what good planning is designed to avoid. When you’re ready to talk specifics, reach out to our Key West office for a consultation.
The good news in all of this: every mistake above is preventable. None of them require luck or a fortune. They require a plan that actually fits Florida law and the family you have today—reviewed often enough to stay true.
Frequently Asked Questions
What is the most common estate planning mistake in Florida second marriages?
Failing to account for the elective share. Florida Statutes §§ 732.201–732.2155 entitle a surviving spouse to 30% of the elective estate, so a will that leaves everything to children from a prior marriage will not actually disinherit a new spouse. The fix is deliberate planning—a marital agreement waiving the share, or a QTIP/marital trust that supports the spouse for life while preserving the remainder for your children.
Can I leave my Florida homestead to my children if I'm remarried?
Usually not freely. Under Article X, Section 4 of the Florida Constitution and Florida Statute § 732.401, if you’re survived by a spouse you generally cannot devise the homestead to anyone but that spouse, and if you also have a minor child you may not be able to devise it at all. A will that contradicts these rules is overridden by law, often leaving the spouse and children as reluctant co-owners. Tools like an enhanced life estate deed or a spousal waiver, set up in advance, give you more control.
Does my will control my retirement accounts and life insurance?
No. Those assets pass by beneficiary designation, not by your will or trust. If an old form still names an ex-spouse or fails to reflect your current family, that money goes to the named beneficiary regardless of what your will says—and there is rarely a remedy after death. Review every beneficiary designation and coordinate it with the rest of your plan.
What happens if I create a trust but never fund it?
An unfunded trust controls nothing. A revocable living trust only governs assets actually retitled in its name, so if your home and accounts are still in your individual name, they go through probate anyway and your trust’s provisions may be bypassed. Funding requires recording new deeds, retitling accounts, and updating designations, with a pour-over will as a backstop.
Do I need a new will if I moved to Florida from another state?
Your out-of-state will is generally still valid in Florida, but it may not be optimized for Florida’s homestead restrictions, elective-share rules, and execution formalities. A move is one of the key triggers to have your plan reviewed by a Florida attorney so it works the way you intend under Florida law.
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For more on our Florida practice, see our overview of estate planning in Boca Raton. Morgan Legal Group's affiliated New York office also handles .
