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What is the best way to protect my adult children and my house before I remarry, a will or a trust?

Fort Lauderdale, FL |
Attorney answers 4

Best Answer

I concur. Sit down with a Florida estate planning attorney and get BOTH a Pre-Marital Agreement and a Living Trust prepared, so that you protect the inheritance you want your children to have. Good Luck!


In Florida, your home is "protected homestead" under the Florida Constitution. If you marry and pass away, your new spouse will receive a minimum of a life estate in the property. Your greatest protection for your children is a prenuptial agreement (agreement with spouse BEFORE you are married). Your fiance can waive his or her rights to homestead under a prenuptial agreement. Then, either a will or trust stating that you and your fiance entered into a prenuptial agreement and you intend for the terms of that agreement to control. If, after you are married, you have a child of that marriage and you pass away before the child attains majority (18 in Florida), it's a different story. The Constitution protects minor children and a spouse cannot waive the rights of an unborn child. You need to consult an estate planning attorney who understands constitutional homestead and ask to have a prenuptial agreement prepared that will protect your home and adult children.


Neither. The ONLY way to properly protect children from a prior marriage is to consult with a family law attorney before you get married and work with an estate planning attorney accordingly. A pre-nuptial agreement seems in order. Life insurance and/or a trust also may be useful. Lawrence Friedman, Bridgewater, NJ. Certified as an Elder Law Attorney by the ABA approved National Elder Law Foundation, former Chair NJ State Bar Association Elder and Disabilities Law Section, Member Board of Consultors of NJSBA Real Property, Trusts & Estates Law Section, Vice Chair Special Needs Law Section of National Academy of Elder Law Attorneys, and Master of Laws (L.L.M.) in Taxation from N.Y.U. School of Law.


I agree with my colleagues. I strongly suggest a properly drafted prenuptial agreement by a competent Attorney as well as a comprehensive estate plan that addresses your concerns.

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