Reviewing your Florida estate plan means re-reading your will, trust, beneficiary designations, and powers of attorney to confirm they still reflect your wishes, your family, and current Florida law. As a general rule, you should review your plan every three to five years and after any major life or financial change. For married couples especially, that review is the moment to catch elective-share and homestead problems before they turn into a probate fight no one wanted.
I have sat across the table from too many surviving spouses holding a document their husband or wife signed a decade earlier, certain it said one thing, only to learn it no longer does what they assumed. The law moved. The accounts moved. The family moved. The paper stayed frozen in 2014. This article walks through when to review a Florida estate plan, why it matters, and the specific Florida traps that punish people who let their documents go stale.
Why a Florida estate plan goes out of date
An estate plan is a snapshot of a moment. It captures who you loved, what you owned, and what the statutes said on the day you signed. Time erodes all three.
Your assets shift. You refinance the house, roll over a 401(k), open a brokerage account, sell a condo in Naples and buy one in Boca. Beneficiary designations on retirement accounts and life insurance pass outside your will entirely, so a forgotten ex-spouse on an old IRA can quietly override every careful sentence in your trust.
Your family shifts too. Marriages, divorces, births, deaths, a child who develops a disability, a son-in-law you no longer trust, a grandchild you now want to help with college. And the law itself shifts. The federal estate-tax exemption changes with inflation and with Congress; Florida’s own statutes on homestead, elective share, and digital assets have all been revised in recent years. A plan that was airtight in 2016 may have a quiet gap today.
When to review your Florida estate plan: the trigger events
There are two kinds of triggers. The first is simply the passage of time. Even if nothing dramatic happens, sit down with your documents every three to five years. The second kind is the life event — and these should prompt a review within months, not someday.
- Marriage or remarriage. Florida gives a surviving spouse strong, often non-waivable rights. A new marriage can rewrite your plan by operation of law whether you intend it to or not.
- Divorce. Under Florida Statutes § 732.507, a divorce voids provisions in your will favoring your former spouse, and § 732.703 reaches certain beneficiary designations — but it does not catch everything, and it does not cover a separation that never finalized.
- Death of a spouse, child, or named beneficiary. The death of a beneficiary, trustee, or personal representative can leave a hole in the plan that the documents never anticipated.
- Birth or adoption of a child or grandchild. Florida protects “pretermitted” children under § 732.302, but relying on a default statute is no substitute for naming the people you actually want to provide for.
- A move to or from Florida. Estate law is state-specific. A will drafted in New York or New Jersey is generally valid here, but homestead, elective share, and witnessing rules differ enough that an out-of-state plan deserves a Florida lawyer’s eyes.
- A significant change in net worth. Selling a business, receiving an inheritance, or watching a retirement account grow can push you into estate-tax planning territory you weren’t in before.
- A health diagnosis or aging. This is when your durable power of attorney, health care surrogate, and living will matter most — and when it is too late to sign new ones if capacity has slipped.
- Buying real estate in another state. Out-of-state property can trigger a second, ancillary probate. Often a revocable trust solves it; you won’t know unless you look.
If any of these have happened to you and your documents haven’t changed, you are overdue.
The surviving-spouse stakes: Florida’s elective share
This is where I spend most of my time with clients, because it is where good intentions and bad drafting collide. Florida is one of the most protective states in the country for a surviving spouse, and the centerpiece of that protection is the elective share.
Under Florida Statutes § 732.201 and the sections that follow, a surviving spouse may elect to take 30 percent of the deceased spouse’s “elective estate” instead of whatever the will or trust actually leaves them. The elective estate is deliberately broad — it is not just the probate estate. It reaches:
- The decedent’s probate assets;
- Revocable (living) trust property;
- Pay-on-death and transfer-on-death accounts;
- Certain jointly held property and the net cash surrender value of life insurance;
- Retirement accounts and certain transfers made within a year of death.
The point of the statute is to stop a spouse from disinheriting the survivor by quietly retitling everything outside the will. You cannot dodge the elective share by simply pouring assets into a revocable trust — Florida law follows them.
Why does this matter for a review? Because blended families are where it bites. Consider a common scenario: a husband remarries, signs a will leaving everything to his children from his first marriage, and assumes that settles it. It does not. His second wife can elect against the estate and take her 30 percent regardless of what the will says — unless there is a valid waiver. A review is the moment to either honor that right deliberately or address it openly with a properly executed prenuptial or postnuptial agreement under § 732.702.
Spousal rights you cannot simply ignore
The elective share does not stand alone. Florida layers several other protections on top of it, and a stale plan can run headlong into all of them:
- Homestead. The Florida Constitution restricts how you can leave homestead property if you are survived by a spouse or minor child. Try to leave the homestead to your kids while a spouse survives you, and the devise can be invalid — the surviving spouse instead takes a life estate (or, by election, a half-interest as tenant in common under § 732.401).
- Family allowance and exempt property. Under §§ 732.402 and 732.403, a surviving spouse is entitled to certain exempt personal property and a family allowance during administration, on top of other rights.
- Intestate share. If there is no valid will, § 732.102 governs what the spouse receives — and the answer changes depending on whether all the decedent’s children are also the surviving spouse’s children.
None of these rights cares whether your documents are current. They apply by force of law. The only way to plan around them intelligently is to know they exist and draft with them in mind — which is exactly what a periodic review forces you to do.
What a thorough Florida estate plan review actually covers
A real review is more than dusting off the will. When I sit down with a client, we work through the whole architecture:
- The will and any trusts. Do the beneficiaries, the residuary clause, and the fiduciary appointments still match your life? Is the named personal representative still willing, able, and Florida-eligible?
- Beneficiary designations. We pull statements for every retirement account, annuity, and life insurance policy. These pass outside the will, and they are the single most common source of accidental disinheritance.
- Titling of assets. How property is titled — individually, jointly with right of survivorship, in a trust — controls how it passes. For couples, this interacts directly with the elective share and homestead rules above.
- Trust funding. An unfunded revocable trust is an expensive empty box. If you created a trust to avoid probate but never retitled the house and accounts into it, the plan won’t deliver what you paid for.
- Incapacity documents. Durable power of attorney, designation of health care surrogate, and living will. Florida tightened its power-of-attorney statute in Chapter 709; older “springing” forms drafted before 2011 may not work the way you expect.
- Out-of-state and digital assets. Real property in other states, cryptocurrency, online accounts, and business interests all need their own treatment.
For couples with property or family in more than one state, coordination matters. Strategies that work in New York — such as home transfers and retained life estates in New York State — don’t always map cleanly onto Florida homestead law, and the reverse is true as well. If you hold a northern home and a Florida residence, both sides of the plan have to be drafted to talk to each other. The same caution applies to a last will and testament executed in New York if you have since become a Florida resident; it is usually valid here, but it should be reviewed against Florida’s spousal and homestead protections before you rely on it.
How often is “often enough”?
For most families, a calendar-based review every three to five years catches the slow drift — the appreciated accounts, the inflation-adjusted exemption, the statutory tweaks. Layer the life-event triggers on top of that calendar, and you have a system that rarely leaves anyone holding a surprise.
High-net-worth families, business owners, and blended families should review more frequently, because their plans have more moving parts and more tax exposure. If federal estate-tax law is in flux — and it periodically is, with the exemption scheduled to shift under sunset provisions — that alone is reason to check in with counsel even if nothing in your own life has changed.
You can learn more about how a Florida-focused practice approaches these reviews through our firm’s Florida estate planning resources, and you can read more about the documents themselves on our wills and Florida probate pages.
The cost of waiting
The cruelest thing about a stale estate plan is that the person who made it never has to live with the consequences. The survivors do. I have watched a second spouse and a first family spend two years and a six-figure legal bill fighting over an elective share that a thirty-minute conversation could have resolved while everyone was still alive. I have seen a homestead devise collapse because no one realized the surviving spouse could not be written out. I have seen an ex-spouse inherit an IRA because a beneficiary form from a previous marriage was never updated, and the probate court could do nothing about it.
None of those outcomes were what the deceased wanted. All of them were preventable. A review is not about predicting your death; it is about making sure the people you love aren’t handed a fight on the worst week of their lives.
If it has been more than a few years since you looked at your documents — or if a marriage, divorce, death, move, or windfall has touched your family since then — treat that as your signal. Speak with a Florida estate planning attorney, bring your current documents and beneficiary statements, and find out whether your plan still says what you think it says.
Frequently Asked Questions
How often should I review my Florida estate plan?
Review your plan every three to five years as a baseline, and within a few months of any major life or financial event — marriage, divorce, a death in the family, a birth, a move to or from Florida, or a significant change in net worth. Blended families and high-net-worth households should review more often because their plans carry more tax and spousal-rights exposure.
Can my spouse override my Florida will and take more than I left them?
Yes. Under Florida’s elective-share statute (§ 732.201 and following), a surviving spouse can elect to take 30 percent of the broadly defined elective estate instead of what the will or trust provides. That estate includes revocable-trust property, pay-on-death accounts, and certain other transfers — so you cannot disinherit a spouse simply by moving assets out of the will. The right can only be limited through a valid prenuptial or postnuptial waiver.
Will my out-of-state will still work after I move to Florida?
A will validly executed in another state, such as New York or New Jersey, is generally recognized in Florida. But Florida’s homestead, elective-share, and execution rules differ, so an out-of-state will should be reviewed by a Florida attorney to make sure it still does what you intend and doesn’t run afoul of the state’s spousal protections.
What happens to my estate plan after a divorce in Florida?
Florida Statutes § 732.507 voids provisions in your will that favor a former spouse, and § 732.703 reaches certain beneficiary designations. However, these statutes don’t catch every document, and they don’t apply to a separation that was never finalized. After a divorce you should affirmatively update your will, trust, powers of attorney, and all beneficiary forms rather than relying on the default rules.
Do I need to update my power of attorney and health care documents too?
Yes. Incapacity documents are part of a complete review. Florida revised its power-of-attorney law in Chapter 709, and older ‘springing’ powers drafted before 2011 may not function as expected. Your durable power of attorney, health care surrogate designation, and living will should be current and signed while you still have capacity, because they cannot be updated once capacity is lost.
For more on our Florida practice, see our overview of Florida estate planning. Morgan Legal Group's affiliated New York office also handles New York elder law.