Many Boca Raton residents assume they can leave their estate to whomever they choose. Under Florida law, that is only partly true. A surviving spouse has protections that override a will, and the most expensive estate disputes in Palm Beach County often stem from couples who never accounted for them. Here are the spousal-rights mistakes to avoid.
Mistake 1: Forgetting the Elective Share
Florida’s elective share (Fla. Stat. §732.2065 and following) entitles a surviving spouse to 30% of the “elective estate.” Critically, this is not limited to probate assets. The elective estate reaches many non-probate items: revocable trust property, certain jointly held accounts, pay-on-death designations, and even some assets transferred before death. A Boca Raton spouse who tries to disinherit a husband or wife by funneling everything into a trust or beneficiary designation often discovers the 30% claim follows the money anyway.
Mistake 2: Treating Homestead Like Any Other Asset
Florida’s constitutional homestead protection (Art. X, §4) has its own rules. If you are survived by a spouse and try to devise your homestead to anyone else, the devise can be invalid. The surviving spouse may take a life estate with a remainder to descendants, or elect a one-half tenancy in common. For couples in Boca Raton communities where the residence is often the largest asset, ignoring homestead rules can unravel an entire plan.
Mistake 3: Assuming a Prenup Solves Everything Automatically
Spouses can waive the elective share, homestead rights, and intestate share, but only through a valid written agreement that meets Florida’s requirements, including fair disclosure. A handshake or an outdated document drafted in another state may not hold up. If you remarried later in life in Boca Raton, a properly executed marital agreement is often the cleanest way to honor commitments to children from a prior marriage.
Mistake 4: Letting Beneficiary Designations Drift
Life insurance, IRAs, and brokerage accounts pass by designation, not by will. After a divorce or remarriage, those designations frequently go stale. A new spouse may expect to inherit, while an old form still names an ex. Coordinating designations with your overall plan prevents both unintended disinheritance and accidental windfalls.
Mistake 5: Overlooking the Pretermitted Spouse Rule
If you sign a will and then marry, Florida may treat your new spouse as “pretermitted,” entitling them to an intestate share unless the will provided for the spouse or showed a clear intent to exclude them. Boca Raton newlyweds who never updated an older will can leave their families with an unexpected outcome.
One Bright Spot: No Florida Estate Tax
Florida imposes no state estate or inheritance tax, so spousal planning here focuses on rights and titling rather than state death taxes. That makes clean documentation, not tax gymnastics, the priority.
Consult a Florida Attorney
Spousal rights under Florida law interact in ways that are easy to misjudge. Before relying on a will, trust, or beneficiary form, speak with a Florida-licensed estate planning attorney familiar with Palm Beach County practice to confirm your plan reflects what you actually intend.
For more on our Florida practice, see our overview of estate planning in Palm Beach. Morgan Legal Group's affiliated New York office also handles Article 81 guardianship in New York.
