What married couples should know about children, the family home, and Florida inheritance rules.

By Denise L. Adkins, Esq., LL.M. in Taxation, Georgetown University Law Center

One of the most dangerous estate planning assumptions married couples make is believing that everything automatically passes to the surviving spouse. In Florida, that is not always true.

Many married couples assume that if one spouse dies, the surviving spouse simply inherits the house, bank accounts, investments, and other assets.

Unfortunately, Florida inheritance law can produce a very different result, especially in blended families or when one spouse has children from a previous relationship.

Understanding these rules before a death occurs can help families avoid unexpected ownership disputes, probate proceedings, and financial complications.

Does a Surviving Spouse Inherit Everything in Florida?

The answer depends on several factors, including whether the deceased spouse had a valid will, whether the couple had children together, whether either spouse had children from another relationship, and how their assets were titled.

Under Florida Statutes § 732.102, when someone dies without a valid will, the surviving spouse may inherit the entire intestate estate in certain circumstances.

For example, if the deceased spouse leaves no surviving descendants, the surviving spouse generally inherits the entire intestate estate.

The same may be true when all of the deceased spouse’s surviving descendants are also descendants of the surviving spouse, and the surviving spouse has no other surviving descendants.

However, the outcome can change significantly in blended families.

What Happens When There Are Children From a Previous Marriage?

Consider a common scenario.

A husband and wife have been married for 15 years. The husband has two adult children from a previous marriage. The couple owns a home, and the husband has investment accounts titled solely in his name.

The husband dies without a will or trust.

The wife may assume she inherits everything because she was married to him.

But under Florida intestacy law, the surviving spouse generally receives one-half of the intestate estate, while the deceased spouse’s descendants inherit the other half when the deceased spouse has descendants who are not also descendants of the surviving spouse.

This can create an unexpected financial relationship between the surviving spouse and stepchildren.

Importantly, these intestacy rules do not automatically determine the disposition of every asset. Beneficiary designations, joint ownership, trust ownership, and Florida homestead protections may produce different results.

What Happens to the Family Home?

Florida homestead law introduces another layer of complexity.

Under Article X, Section 4 of the Florida Constitution and Florida Statutes §§ 732.401 and 732.4015, special restrictions may apply to the transfer of homestead property when an owner dies leaving a surviving spouse or minor child.

In certain circumstances, when homestead property is not validly devised, a surviving spouse receives a life estate, with the descendants receiving a vested remainder interest.

Alternatively, the surviving spouse may have the right to elect an undivided one-half interest as a tenant in common, subject to statutory requirements and deadlines.

That means the surviving spouse may not automatically receive outright ownership of the family home.

This distinction can have serious implications when the surviving spouse wants to sell, refinance, relocate, or otherwise manage the property.

What If We Have a Will?

A will is important, but it does not necessarily eliminate probate.

A will generally directs how probate assets should be distributed. It does not automatically transfer every asset outside the court-supervised probate process.

Additionally, Florida’s homestead restrictions and surviving spouse protections may limit what a will can accomplish.

This is one reason estate planning should involve more than simply preparing a will.

Can a Revocable Living Trust Help?

A properly designed and funded revocable living trust can provide greater flexibility and continuity.

Depending on the family’s circumstances, a trust may help:

• Avoid probate for assets properly transferred into the trust.
• Establish clear instructions for the surviving spouse.
• Provide for children from previous relationships.
• Designate successor trustees to manage assets.
• Address incapacity and financial management.
• Coordinate real estate transfers and beneficiary designations.
• Reduce the potential for disputes between family members.

However, a trust must be carefully coordinated with Florida homestead law, marital rights, and the couple’s overall estate plan.

Simply signing a trust document is not enough.

What About Estate Taxes and Capital Gains Taxes?

Estate planning is not solely about deciding who receives property.

The structure and timing of transfers may also affect tax consequences.

For example, inherited property may qualify for an adjustment in income tax basis under Internal Revenue Code § 1014, depending on the circumstances.

By contrast, certain lifetime gifts may carry over the original owner’s tax basis.

Married couples should also consider whether their estate planning documents properly coordinate income tax consequences, estate tax exposure, and the financial needs of the surviving spouse.

Even families that are unlikely to owe federal estate tax can benefit from tax-conscious estate planning.

Estate Planning Is Especially Important for Blended Families

Second marriages and blended families often present some of the most complicated estate planning questions.

A spouse may want to provide financial security for a surviving husband or wife while also preserving an inheritance for children from a prior relationship.

Without careful planning, those objectives can conflict.

A properly structured estate plan can establish the surviving spouse’s rights while defining what happens to the remaining assets after that spouse’s death.

Protect Your Spouse Before It Becomes a Probate Problem

At The Law Offices of Denise L. Adkins, P.A., we assist Florida families with estate planning, revocable living trusts, wills, probate administration, homestead considerations, real estate transfers, and tax-conscious wealth planning.

Our approach considers not only what happens when someone dies, but also how the estate plan will function for the people left behind.

Denise L. Adkins, Esq., holds a Master of Laws (LL.M.) in Taxation from Georgetown University Law Center, providing an additional perspective on the relationship between estate planning, property ownership, and taxation.

Our office is located in Winter Springs, Florida, serving clients throughout Seminole County and surrounding Central Florida communities, including Oviedo, Lake Mary, Longwood, Casselberry, and Orlando.

If you are married, have children from a prior relationship, own Florida real estate, or simply want to ensure your spouse is protected, now is the time to review your estate plan.

The Law Offices of Denise L. Adkins, P.A.

866 East State Road 434
Winter Springs, Florida 32708
Phone: (407) 337-3377

This article provides general educational information about Florida law and does not constitute legal advice. The appropriate estate planning strategy depends on individual circumstances.