Avoiding common Florida estate planning mistakes means building a plan that respects Florida’s unique homestead, elective share, and spousal protection laws — not just copying a generic will from another state. The most damaging errors are usually invisible until someone dies, when a surviving spouse discovers the plan failed to account for Florida Statutes Chapter 732 and the Florida Constitution. Getting these details right is the difference between a smooth transition and years of probate litigation.
I have spent enough time in Florida probate courtrooms to know that most estate planning disasters are not exotic. They are ordinary mistakes, repeated over and over, by well-meaning people who assumed their documents would simply work. Below are the errors I see most often, with particular attention to how each one lands on the surviving spouse — the person who almost always pays the price.
Why Florida Estate Planning Mistakes Are Different
Florida is not like other states, and a plan that worked beautifully in New Jersey or Ohio can collapse the moment it crosses the state line. Three features make Florida distinctive: the constitutional homestead protection, the spousal elective share, and the state’s particular rules on how a married person may devise property. Ignore any one of them and you can accidentally disinherit your spouse, trigger litigation, or hand assets to a child you intended to limit.
The frustrating part is that these mistakes are entirely avoidable. They come from inattention, stale documents, and DIY forms — not from anything inherently complicated about Florida law.
Mistake #1: Treating the Homestead Like Ordinary Real Estate
Florida’s homestead is governed by Article X, Section 4 of the Florida Constitution, and it does not behave like a normal asset. If a person who is married or has minor children tries to leave the homestead to anyone other than the surviving spouse, the devise is invalid. The property does not pass as written. Instead, it passes by operation of law.
Under Florida Statutes § 732.401, if you are survived by a spouse and descendants, the surviving spouse takes a life estate in the homestead, with the remainder to the descendants — unless the spouse timely elects, instead, to take an undivided one-half tenant-in-common interest. That election must be made within six months of the decedent’s death and recorded properly.
Here is where surviving spouses get hurt: a life estate sounds generous until you realize the life tenant is responsible for property taxes, insurance, and ordinary upkeep, while the remaindermen — often adult stepchildren — control what happens to the property long-term. I have watched that arrangement turn families into adversaries within months.
A thoughtful plan addresses homestead deliberately, sometimes through a properly structured deed or trust, and always with the spouse’s rights in clear view. If you own property in more than one state, coordinate carefully; for related guidance on retained life estates and home transfers, this overview of home transfers and retained life estates illustrates how life-estate planning is handled in another jurisdiction.
Mistake #2: Forgetting the Elective Share
This is the heart of why surviving-spouse planning deserves its own attention. Florida Statutes § 732.201 through § 732.2155 give a surviving spouse the right to claim an elective share equal to 30% of the decedent’s “elective estate,” regardless of what the will says.
The critical word is elective estate. Many people assume they can disinherit a spouse simply by leaving everything to children, a trust, or a new partner through beneficiary designations. They cannot. Florida’s elective estate is broad and intentionally reaches assets that ordinary probate misses, including:
- Probate assets passing under the will or by intestacy;
- Revocable trust property;
- Pay-on-death and transfer-on-death accounts;
- Certain jointly held property;
- The net cash surrender value of life insurance on the decedent’s life;
- Certain transfers made within one year of death.
The elective share exists precisely to stop spouses from being written out of the estate. But it cuts both ways. A surviving spouse who does not understand the deadline can lose the right entirely — the election generally must be filed within the earlier of six months after service of the notice of administration or two years after the date of death, under § 732.2135. Miss it, and a meritorious claim evaporates.
If you intend a different arrangement — say, a second marriage where both spouses want to provide primarily for their own children — the right tool is usually a valid marital agreement that knowingly waives elective-share rights under § 732.702, not silence and hope.
Mistake #3: Stale Beneficiary Designations
Wills and trusts get the attention, but beneficiary designations quietly control enormous amounts of wealth — retirement accounts, life insurance, annuities, and TOD brokerage accounts. These pass outside the will. Your beautifully drafted estate plan does not override a designation form from 1998 that still names an ex-spouse.
Florida does have a partial safety net: § 732.703 revokes certain beneficiary designations in favor of a former spouse upon divorce. But it does not reach everything, it has exceptions, and relying on it is a poor substitute for simply updating your forms.
Review every designation after each major life event — marriage, divorce, the birth of a child, a death in the family. It takes minutes and prevents some of the ugliest disputes I see.
Mistake #4: Relying on a Will Alone to Avoid Probate
A common misunderstanding: people believe that having a will means avoiding probate. It does not. A will is precisely the document that goes through probate. If your goal is to spare your spouse the cost and delay of formal administration, a will by itself rarely accomplishes it.
For many Florida families, a properly funded revocable living trust, combined with coordinated beneficiary designations and, where appropriate, an enhanced life estate (“Lady Bird”) deed, is the more effective structure. The key word is funded — an unfunded trust is an empty box that still sends assets through Florida probate. Understanding the proper role of a last will and testament within a broader plan helps clarify what a will can and cannot do.
Mistake #5: Out-of-State Documents and DIY Forms
When clients move to Florida, they often bring documents drafted elsewhere. A will validly executed in another state is generally honored here, but the surrounding plan frequently is not Florida-aware. Powers of attorney are a frequent casualty: Florida’s durable power of attorney statute, Chapter 709, imposes specific signing and “superpowers” requirements that out-of-state forms may not satisfy, leaving an agent unable to act when it matters.
DIY online wills carry their own hazards. Florida requires a will to be signed by the testator and witnessed by two witnesses, all present together, under § 732.502. I have seen homemade wills fail on execution formalities alone, throwing the estate into intestacy — which then triggers the very spousal and homestead rules people were trying to plan around, only without their input.
Mistake #6: No Plan for Incapacity
Estate planning is not only about death. Without a durable power of attorney, a designation of health care surrogate, and a living will, your family may need a court-supervised guardianship to make basic decisions if you become incapacitated. Guardianship is expensive, public, and slow. For a surviving spouse already under strain, it is one more avoidable burden.
Mistake #7: Never Reviewing the Plan Again
An estate plan is a snapshot of your life and the law on the day you signed it. Both change. Tax thresholds shift, families grow and fracture, assets are bought and sold, and Florida amends its statutes. A plan you have not looked at in fifteen years may be quietly broken.
A sensible cadence:
- Review every three to five years as a baseline;
- Review immediately after any marriage, divorce, birth, or death;
- Review after a significant change in assets or a move to or from Florida;
- Confirm beneficiary designations and deed titling match the written plan.
Protecting the Surviving Spouse: The Throughline
Notice the pattern running through all seven mistakes. Each one tends to surface only after death, and each one tends to fall on the surviving spouse — through a homestead life estate they did not want, an elective share they did not know to claim, a beneficiary form that paid the wrong person, or a probate they assumed they had avoided. Good Florida planning anticipates the moment of loss and makes that moment easier, not harder.
If you want to discuss how these protections apply to your own situation, our Florida team focuses on exactly these issues; you can learn more about our approach to estate planning or review our wills and trusts services. When you are ready, reach out for a focused conversation about your family’s plan.
None of this is about fear. It is about precision. Florida gives surviving spouses powerful protections, but those protections only work inside a plan that knows they exist.
Frequently Asked Questions
What is the biggest estate planning mistake Florida couples make?
Treating the homestead and the spousal elective share as afterthoughts. Florida’s Constitution restricts how a married person can devise the homestead, and Florida Statutes § 732.201 gives a surviving spouse a 30% elective share regardless of the will. Plans drafted without these in mind frequently fail the surviving spouse.
Can I disinherit my spouse in Florida?
Not unilaterally. Under Florida’s elective share statutes, a surviving spouse can claim 30% of the broad ‘elective estate,’ which reaches trusts, POD accounts, and certain other transfers. The only reliable way to alter that outcome is a valid marital agreement waiving those rights under § 732.702.
Does a will avoid probate in Florida?
No. A will is the document that passes through probate. To reduce or avoid Florida probate, families typically use a properly funded revocable trust, coordinated beneficiary designations, and sometimes an enhanced life estate (Lady Bird) deed.
How long does a surviving spouse have to claim the elective share?
Generally, the election must be filed by the earlier of six months after service of the notice of administration or two years after the date of death, under Florida Statutes § 732.2135. Missing the deadline can forfeit an otherwise valid claim.
Will my out-of-state will work in Florida?
A will validly executed elsewhere is usually honored, but the surrounding plan — especially powers of attorney under Chapter 709 and homestead and spousal provisions — often is not Florida-compliant. It should be reviewed by Florida counsel after relocation.
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 New York elder law.