how to protect your children with estate planning from previous marriageRemarriage is an impactful decision for your new and old family. If you are divorced or widowed, marrying again is an opportunity to start fresh. It is also an opportunity to address your wealth, your assets, and your plan to provide for your children. Whether this is your second or fourth marriage, the family dynamic is undoubtedly different now than in your previous marriages. More importantly, estate and intestacy (inheritance) laws apply to heirs differently when your family structure changes. But you can use proper estate planning to protect your children from unwanted consequences of state intestacy laws after you remarry. 

Can Estate Planning Protect Your Children?

Remarriage creates 1,300 new blended families every day in the United States. Family units look much different now than in decades past. But as a parent, you still want to protect children from your first marriage and ensure that they receive some amount of inheritance after you pass. You can achieve this through estate planning. In fact, an estate plan is the only way to ensure your children will receive the inheritance you desire. No matter what conversations you have or promises you and your new spouse make, if your wishes are not written and legally executed, your kids only get what default state law permits. Your spouse has no obligation to financially provide for your kids or ensure they inherit what they “deserve” or what you wanted them to have. 

Remarrying later in life usually means your assets are more significant, and your children’s needs are different. Introducing a new spouse into your family can spark tension, especially if your kids are older. Questions may arise about your spouse’s intentions with your money, and your kids may become concerned that their inheritance will dwindle over the years. You may feel conflicted between providing for your new spouse and providing for your children from a previous marriage. With an estate plan, you don’t have to choose. You can use estate planning to protect your children financially through a variety of techniques, strategies, and tools. 

How Does Florida Law Impact Blended Families?

Without an estate plan, Florida law creates one for you. There are default provisions that apply if you die without a will or other effective estate planning documents. Who gets what under the law may not be what exactly—or even close to what you have in mind. For example, the law protects spouses from being disinherited but has no such protection for children. This is why it is so important to be intentional about providing for your kids from a previous marriage. 

Let’s take a look at some of the legal protections your spouse has that can significantly impact your children’s inheritance under default state law. 

Intestate Succession Law

Florida’s intestate succession law applies if you die without a will. This is basically the state’s version of how it thinks people would want to transfer their assets at death. Under Florida intestacy law, your surviving spouse will inherit half of your estate if your children from your previous marriage also survive you. To get around this, you can execute a valid will and transfer your assets however you wish. 

The Elective Share

You can’t disinherit your spouse in Florida. When you die, your surviving spouse has a legal right to 30% of your property interests. This is known as the elective share. The only way around this is through a prenuptial or postnuptial agreement, where both spouses waive their right to the elective share. 

Keep in mind that, without such an agreement, your will does not override the elective share. In effect, if your new spouse doesn’t like what they get under your will, they can elect to receive the set amount under the law (i.e., the elective share). 

What Are Some Estate Planning Options to Protect Children?

An impactful and comprehensive estate plan usually consists of several types of documents. Here are some common yet effective estate planning tools you can use to provide for your children. 

Prenuptial or Postnuptial Agreement

Prenuptial agreements have a certain stigma—only couples that don’t trust each other make prenups. But in fact, this document is a way to ensure financial security for your new spouse and your children. As discussed above, a prenuptial agreement can be used to waive the elective share so that your spouse can’t come back and claim more than you intended for them to receive. This safeguards your children’s inheritance and allows you to predetermine what assets go to your spouse. 

If you’re already remarried, you can execute a postnuptial agreement and still waive the elective share.

Last Will and Testament

With a properly executed will, you can transfer certain assets to your children. Particularly if you have items that are of sentimental value, a will is a great way to ensure those assets stay in the family. 


Trusts come in all shapes and sizes and serve a variety of purposes. You can structure the terms just about any way you want. For example, you could put money or property in a trust for your spouse to use throughout their life. At your spouse’s death, all of the trust assets could transfer to your children. 

Life Insurance

Taking out a life insurance policy is another way to provide for your children without your spouse intervening. By naming your children as the beneficiaries of the life insurance policy, they will automatically receive the proceeds at your death. With life insurance and retirement accounts like IRAs and 401Ks, your children get the proceeds faster than if you left money under the terms of your will. Wills must go through a potentially lengthy probate process before your kids get their inheritance. If you name your children beneficiaries in a life insurance policy, the proceeds transfer directly to them upon your death with no need for probate.

We Can Create an Estate Plan to Protect Your Children

The attorneys at Beller & Bustamante, P.L. are ready to help you create an estate plan that meets your needs and goals. With over 40 years of combined legal experience, our estate planning lawyers know how impactful Florida’s laws are on blended families. That’s why we take the time to educate our clients and explain the different estate planning techniques and tools available. Contact us by calling our office or filling out our online form. We look forward to seeing how we can help you secure your family’s future.