Do You Need Separate Wills For Married Couples in Florida?

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By Gary M. Landau, Esq.

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When spouses get together to plan who they want to leave their assets to after they die, they typically understand that a will will be a crucial component. But they frequently wonder whether they need separate wills for married couples in Florida, or whether this can be done in a single document.

The answer is that separate wills are indeed required.

Some people worry that having two documents could lead to inconsistencies, disputes, or extra cost. But the reality is that Florida law requires each person to have their own will. What’s more, separate wills–when drafted and executed correctly–are actually the best way to protect a spouse, their children, and the couple’s assets.

At the LAW OFFICE OF GARY M. LANDAU, located in Coral Springs, our goal is to clearly answer your questions so you can create an estate plan that reflects your wishes and also comports with Florida law.

A Closer Look: Florida Law and “Joint Wills”

In Florida, there is no such thing as a legal “joint will” signed by both spouses. A will is seen as a personal declaration of wishes, so Florida law treats each spouse’s decisions individually.

That said, married couples often create wills that are similar and coordinated, known as mirror image wills. Each spouse has a separate will that they sign and execute, but the provisions mirror those in the other person’s document. For example, each person might leave the estate to the other spouse, with certain items going to their children.

Of course, when people have blended families or different priorities, such as charities one might wish to leave money to, the will of each person in the married couple may vary.

Florida law does provide for something known as a mutual will agreement. This legislation, in Fla. Stat. § 732.701, allows for a separate agreement stating that the provisions in each person’s will can never be changed. This agreement, which should be referenced in each spouse’s will, may be especially useful for protecting the assets of children from a prior marriage. Such agreements do come with risk, however, because circumstances may later change for the surviving individual, yet their will cannot be altered.

(See An Experienced Florida Estate Attorney Answers the Most Frequently Asked Questions About Wills.)

Why “Separate Wills for Married Couples” Makes Sense

Even when couples have aligned goals, there are compelling reasons why two distinct wills is the best approach.

  • Flexibility if circumstances change. After one spouse dies, the surviving spouse’s financial situation, family dynamics, or wishes may change–especially years or decades later. With separate wills, the survivor is free to adjust her or his planning (unless bound by a mutual will agreement).
  • Clarity in execution. Since most couples don’t die at the same time, having a will for a specific individual allows the probate court to oversee the process without confusion or ambiguity.
  • Blended families and prior children. If either spouse has children from a prior marriage or wants to protect certain bequests, separate wills allow for more precise tailoring.

While a couple’s wills may mirror each other in many respects, it benefits each spouse to have their own valid will reflecting their personal desires and priorities.

Legal Requirements for a Valid Will Under Florida Law

To make sure each person creates a valid will under Florida law that will be acceptable to the state’s probate court at the proper time, wills must comply with certain requirements.

  • The will must be in writing. (Florida does not permit oral wills.)
  • The person making the will (known as the testator) must be at least 18 and of sound mind.
  • The testator must sign the will (or direct someone to sign for them) in the presence of two witnesses.
  • The witnesses must sign in the presence of each other and of the testator. (Most attorneys add a “self-proving affidavit” to the document, which allows the court to later accept the signatures without needing to track the witnesses down.)

Failing to follow any of these steps can render a will invalid, inviting litigation and/or causing the estate to be distributed under Florida’s intestacy laws rather than the way the testator desired.

Wills are generally drafted as part of a comprehensive estate plan, which typically includes other documents like a living will and a healthcare surrogacy.

(See An Experienced Attorney Explains Essential Estate Planning Needs.) 

A will not bound by a mutual will agreement can be amended or revoked at any time, by adding a codicil to the will or by creating an entirely new document that takes the place of the old one.

Do Spouses Have Rights to Their Partner’s Estates?

Even with separate wills, Florida law provides legal protections for a surviving spouse. These rights may override or modify bequeaths stated in the will.

  • Elective shares. Even if a spouse is not listed as a beneficiary in a will, surviving spouses are able to claim 30 percent of the deceased spouse’s “elective estate,” which includes both probatable and certain non-probatable assets like joint-tenancy property, trusts, and others, according to Fla. Stat. § 732.201.
  • Homestead protection. If their home qualifies as a Florida homestead and the deceased person has a surviving spouse or minor children, special rules protect those survivors’s interest, including prohibiting a forced sale of the home by other beneficiaries.
  • Exempt property and family allowance. Before the probate process is completed, certain household furnishings, personal items up to $20,000 in net value, and a temporary family allowance (up to $18,000) can be claimed by the surviving spouse and minor children.

Because these protections can unknowingly supersede clauses in a person’s will, it is essential to draft a will with these legal provisions in mind. A South Florida estate planning lawyer always considers Florida law when counseling clients on estate planning.

Coordinating a Comprehensive Estate Plan for Married Couples

Beyond wills, married couples benefit from additional documents which together form a comprehensive estate plan. These documents address issues like who can make medical decisions if you are unable to and what care you want if you are incapacitated at the end of your life.

  • Healthcare surrogacies and advance medical directives (living wills). These legal documents allow a spouse or other trusted person to make your medical decisions if you are unconscious or otherwise unable to do so yourself. In some cases, people also benefit from a durable power of attorney granting someone the ability to take over your finances.
  • Revocable living trust. Some people place their assets in a trust during their lifetime, naming a successor trustee who steps in after their death. People who have these revocable living trusts must nevertheless still draft a will, known as a pour-over will, to handle any assets outside of the trust after the person’s death.
  • Beneficiary designations and non-probate transfers. Many financial accounts fall outside of probate, including retirement accounts, life insurance, and payable-on-death (POD) bank and investment accounts. (These may still count towards the elective share the spouse is entitled to after a death.)

Working with an estate planning attorney helps ensure that your separate wills, trusts, and other documents work harmoniously together.

Life events, including the birth of a child, death of a family member or the named personal representative, changes in finances, relocation to another state, and other factors, can necessitate an update to a will and other estate planning documents.

That’s why it’s important to review these documents whenever such a change occurs, or, at minimum, every five years, to be sure they continue to reflect the testator’s wishes.

Common Concerns Regarding Separate Wills for Married Couples in Florida

Our law firm often hears questions from clients about drafting their separate wills. Here is our general response–keeping in mind that every person’s situation is unique.

  • “Will our separate documents cause conflict or duplication?” If drafted properly, wills should have no ambiguity but instead be complementary, in many cases including mirror image provisions.
  • “What if one spouse wants to change their will later?” Unless restricted by a (rare) mutual will agreement, each spouse retains the right to amend their will at any point in their life, including after their spouse passes away.
  • “Can our kids or other heirs (or people excluded from our wills) challenge the wills?” There’s always the possibility that someone could challenge a couple’s wills, but when they are clearly written and properly executed, the risk of such disputes diminishes.
  • “How complicated or expensive is drafting a will?” Most attorneys keep the cost of drafting a will reasonable to allow more people to do it. Couples’ wills are less expensive than those for two unrelated individuals because many of the provisions are similar. It’s also important to consider the potential cost of delays or unintended consequences when people draft their own will using a template found online, which has the potential of later being found inadmissible.
  • “Which attorney do I call?” When searching online for a “will lawyer” or a “will attorney near me,” look for someone well versed in Florida law and experienced in married-couple estate planning. You also want someone who will listen to your concerns and create the will and other documents with your specific goals and values in mind.

At the Law Office of Gary M. Landau, our Coral Springs-based team knows the issues Florida couples face when drafting their wills. We help all clients through the process using clear, jargon-free language and we pay careful attention to all details.

Build Your Plan Together with the Law Office of Gary M. Landau in South Florida

If you and your spouse are asking, “Do you need separate wills for married couples?” the answer in Florida is yes. Thoughtfully drafting these documents is a crucial part of any cohesive estate plan. At the Law Office of Gary M. Landau, our firm offers comprehensive estate planning as well as probate administration services for clients throughout Florida, including Coral Springs, Parkland, and Boca Raton in South Florida.

With more than 25 years of experience in our practice areas and countless satisfied clients, attorney Gary M. Landau and his team are uniquely positioned to help you with your probate and real estate title and closing needs in Coral Springs, Parkland, Boca Raton, and throughout Florida. Whether you’re ready to probate a loved one’s estate or to write your own will, or if you are purchasing a home, have inherited a home, want to change your deed, or want a closing agent to handle title insurance and all documents for your closing or refinancing, the LAW OFFICE OF GARY M. LANDAU, P.A. is ready to work with you.

Call our office at (954) 979-6566 or complete our online form today to schedule a consultation at no cost. We happily work with our clients in person, over the phone, or on Zoom.

The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction.

LAW OFFICE OF GARY M. LANDAU, P.A.
7401 Wiles Road, Suite 204
Coral Springs, FL 33067
(954) 979-6566
https://garylandau.com/

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Frequently Asked Questions

A will is the simplest way to ensure that your funds, property and personal things will be distributed after your death the way you want them to. Even if you have very few assets, you will benefit from having a will. About half of all Americans die without a will (known in legal terminology as dying intestate). Without a will to indicate your wishes, the court steps in and distributes your property according to state law. A will ensures that your assets will be given to family members or other beneficiaries you designate.

 

Having a will is doubly important if you have young children. One section of the will allows you to designate a guardian for them in the event of your death. Without a will, the court will appoint a guardian for your children, who may not be the person you desire.

Many Florida residents have out-of-state wills, drawn up while they were still living among the hills of North Carolina or the hubbub of New York. If the will was valid according to your old state’s laws at the time you made it, it is still legal in Florida. However, if you are a Florida resident, you may benefit greatly by having a new will drawn up in Florida, because it will likely be more easily admitted to probate.

 

It is important to know that each state has its own requirements for what makes a will a legally binding document. For example, Florida doesn’t recognize handwritten wills that haven’t been witnessed (known as “holographic wills”), or oral wills not put into writing, even if other states okay them. There’s also the matter of Florida estate law. In this state, for example, your surviving spouse is entitled to 30 percent of your net probate estate, regardless of what you say in your will. The spouse may also have a “Homestead” interest in property you share here, even if you want your house to go to someone else. In fact, all real property owned in Florida will be subject to this state’s laws, even if you’re a snowbird maintaining a residence in the state where your will was drawn up. Other peculiarities also exist, which is why a Florida will could make things much easier for your heirs.

 

If you would like to have me review your current out-of-state will, I am happy to do so without charge. If it turns out to be in accordance with Florida state laws and procedures, you can continue to rely on it. If not, however, your heirs would rather you discover that now.

It is a good idea to re-read your will every few years to be sure it reflects up-to-date realities (you may not want to leave your heirloom to a niece you are no longer speaking to, nor have someone be named your child’s guardian if they have taken seriously ill since you drafted your will). It is especially important to reexamine your will if:

 

  • You have gotten married since it was last drafted;
  • You have made bequests to people who have fallen out of your favor or are no longer living (I recently updated the will of a man who had left everything to his first wife, who was long deceased), or you have not included people who are now dear to you;
  • You would like to change the person named as the personal representative of the estate. (Note: Florida law does not allow a nonresident of the state to serve in this position, unless it is an immediate family member or certain other relatives);
  • You have acquired pricey or sentimental items that are not accounted for in your will. Do note, though, that Florida law allows you to attach a separate personal property memorandum to your will, detailing who will get which specific items. This list can be changed whenever you want.

Perhaps I should answer this question with where not to store it: in a bank’s safety deposit box. Although it may seem logical to put this with your other important papers, it is often difficult for your heirs to gain access to the box once you die, since the box is sealed then and must be opened in the presence of a bank employee.

 

One good option is to leave your original will with the attorney who drafted it, making copies for your personal representative and other important relatives and letting them know who has the original. For my clients who prefer that I store their original will, I keep it in a fireproof will vault in my office, or in the vault in my bank.

 

As an alternative, you could store the will in a fireproof box or vault in your own home.

 

Wherever you store it, be sure to let your personal representative and other close relatives know where you have put it!

Probate is when the court oversees your assets and liabilities after your death. During probate, the court makes sure that your will is valid and acceptable; that all debts, bills, creditor’s claims, and taxes are paid from your estate’s assets; and that your remaining assets are distributed to your beneficiaries according to your will (or, if no will exists, by Florida law).

 

Probate usually does take longer than most beneficiaries would like. But in order to ensure that everyone with a right to a claim is included in the process, the court requires several steps. If the size and complexity of your estate are minimal, however, the entire process of probate can take as little as a few months. Larger estates that are subject to IRS estate taxes or those involving litigation on the part of creditors or heirs generally take longer, often one or more years.

 

To speed the process along for simple and small estates, the courts allow a shortened form of probate, known as “summary administration,” which requires much less paperwork and time.

A personal representative (PR) is a friend or relative, or an attorney or bank, who is put in charge of the estate until all matters regarding the probate are resolved. (In other states, this person is sometimes called an executor or administrator.) The job of the PR includes identifying all assets, searching for creditors and paying valid claims, filing required estate tax returns if the estate is large enough (the figure escalates over time, according to Congressional laws), coordinating with the probate court and attorneys, and overseeing the distribution of assets–all done under the guidance and assistance of a qualified attorney.

 

Serving as a PR is an important role, and such a person should be selected with care as to who is most willing and best able to serve in this position. By Florida law, your personal representative must be over 18 years of age, and be a blood relative, your spouse, the parent or child of your spouse, or a Florida resident.

Generally, no. If you co-own all property via such legal structures as “tenancy by the entirety” or by “joint tenancy with right of survivorship” the property immediately passed to you upon your spouse’s death. Proof of death is usually all that is needed to pass such jointly owned title for cars, stocks, and other personal property to the surviving spouse.

 

But if even one asset was held solely in the deceased person’s name, or any property is owned in the form of a “tenancy in common,” that estate will be required to go through probate. If the assets are limited, the shorter, simpler form of probate is generally all that is required.
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