Estate Planning as a Career

Second marriages in Florida create a number of issues that, if not properly addressed, could make a shambles of your estate plan.

It is very common for a widow or widower to remarry. Most of these persons still plan to leave their estate to their children from the first marriage. Their trusts and wills distribute all of their assets to the children, so they see no need to change their estate planning.

However, Florida law has provisions designed to protect a surviving spouse (including a second spouse) which override the terms of a person’s estate planning documents. If you are in a second marriage and wish to protect your children’s inheritance, you must address these laws in your estate planning documents.

The first potential minefield is the elective share. Under the Florida Elective Share law, a surviving spouse is entitled to at least 30% of the deceased spouse’s estate. This means 30% of all property owned individually by the deceased spouse, 30% of all property in the deceased spouse’s revocable trust and 30% of the decedent’s share of property owned jointly with another person.

Under the Elective Share law, the surviving spouse can elect to claim his or her right to this share.

Now, you may say, “I know my husband/wife and we agreed that neither of us would take anything from the other’s estate.” Even if this is true, the possibility exists that your surviving spouse may not be the one making the decision. If your spouse is incapacitated at the time of your death, all of his or her decisions would be made by the person appointed in a power of attorney or by a guardian. In either case, it is likely to be a family member of your spouse.

That family member or guardian may reason that your spouse will need the elective share to pay for his or her care.

Despite what you and your spouse talked about, they h (more…)