Estate Planning for Married Couples in Florida:
Joint Trusts, Spousal Rights & Blended Families

For married couples in Florida, estate planning is both simpler and more complex than it is for single individuals. Simpler, because couples can use joint trusts and leave everything to each other with straightforward survivorship provisions. More complex, because Florida law gives your spouse rights that override your will — rights that must be understood and addressed in any complete plan.

Whether you are newlyweds building your first plan or a long-married couple updating outdated documents, here is what every Florida couple needs to know.

Joint Trust vs. Separate Trusts: Which Is Right for You?

The Joint Revocable Living Trust (Most Common)

A joint revocable living trust is a single trust created by both spouses together, holding all or most of the couple's combined assets. Both spouses are co-grantors and co-trustees during their lifetimes and retain full control. Either spouse can typically amend the trust with the other's consent, or revoke their half independently.

At the death of the first spouse, the surviving spouse typically continues as sole trustee and manages the combined estate. The trust may either pass everything outright to the survivor (simple survivorship) or split into separate subtrusts for tax or protection planning (credit shelter structure).

Best for: couples with primarily joint assets, similar estate planning goals, and no significant blended family concerns.

Separate Trusts

Each spouse creates and funds their own independent trust. Assets are clearly divided between the two trusts — usually along lines of pre-marital vs. marital property, inheritance, or separate business interests.

Best for: blended families where each spouse wants to protect assets for their own children; spouses with significantly different asset bases; couples with pre-marital property that should remain separate; situations where one spouse has significant liability exposure.

The Florida Spousal Elective Share

Florida law protects surviving spouses from disinheritance. Under F.S. § 732.2065, a surviving spouse is entitled to an elective share of 30% of the decedent's "elective estate" — regardless of what the will, trust, or beneficiary designations say.

The elective estate is broader than just probate assets. Under F.S. § 732.2035, it includes:

• All probate assets
• Assets in revocable trusts
• Joint tenancy property (one-half)
• Pay-on-death accounts and beneficiary-designated assets
• Transfers made within one year of death (with limited exceptions)

Homestead Restrictions for Married Couples

Florida's homestead law (Art. X, § 4, Fla. Const.; F.S. § 732.4015) adds an additional layer of complexity for married couples:

• You cannot devise your homestead away from your surviving spouse without the spouse's consent — even in your will or trust
• If you attempt to leave the home to your children and you have a surviving spouse, the devise is void
• The surviving spouse has the right to a life estate in the homestead, with the remainder to your lineal descendants — or the spouse can elect to take an undivided one-half interest as tenant in common
• If you have both a surviving spouse AND minor children, even more restrictive rules apply

Any Florida couple's estate plan must specifically address the homestead and how it will pass — failure to do so can result in the home not passing as intended.

Beneficiary Designations: The Most Common Mistake

For most married couples, life insurance policies, IRAs, 401(k)s, and other beneficiary-designated assets make up the majority of their wealth. These assets pass outside the will and trust — directly to whoever is named as beneficiary.

The most common errors:

• Outdated beneficiary designations — naming a former spouse or a deceased parent
• No contingent beneficiary — if the primary beneficiary dies first, the asset goes to the estate and into probate
• Naming minor children directly — children under 18 cannot receive large sums; a court-supervised guardianship of the property is required
• Not coordinating with the trust — beneficiary designations and the trust must work together, not against each other

Credit Shelter (A/B) Trust Planning for Couples

For couples with combined estates approaching the federal estate tax exemption ($15 million per person under current law as of 2025), an A/B trust structure (also called a credit shelter or bypass trust) allows both spouses' exemptions to be fully utilized.

At the death of the first spouse, the trust splits:

• Trust A (Survivor's Trust) — holds the surviving spouse's share, remains revocable
• Trust B (Credit Shelter / Bypass Trust) — holds the deceased spouse's estate up to the exemption amount, becomes irrevocable; assets in Trust B are removed from the surviving spouse's taxable estate at death

For most Florida couples with estates under $15 million, the federal estate tax is not an immediate concern under current law. However, given the uncertainty of future exemption levels, credit shelter planning remains a valuable option for couples with larger estates.

Portability: An Alternative to A/B Trust Planning

Under federal law, a surviving spouse can elect to use the deceased spouse's unused estate tax exemption (called the Deceased Spousal Unused Exclusion — DSUE). This "portability" election must be made by filing a federal estate tax return within 9 months of the first spouse's death (extendable to 15 months), even if no tax is owed.

Related Reading

• Can You Disinherit a Spouse in Florida? — the 30% elective share every married couple should understand.
• Tenancy by the Entireties — how married couples title property for creditor protection and survivorship.

This article is for general informational purposes and does not constitute legal advice. Estate planning is highly fact-specific. Consult a licensed Florida estate planning attorney regarding your individual circumstances. Arthur Simpson, Esq. is licensed to practice law in the State of Florida.