Everyone who owns property or has money in Florida should make a will. Married couples may make separate or joint wills, as long as the will documents are created and executed in the manner required by Florida laws. Additionally, the effect of wills created by married couples may vary if the couple subsequently divorces and one or both partners remarry.
Who May Make a Will
Wills may be made by persons 18 years of age or older or by an emancipated minor. The will must be made by a person who is competent, meaning that he or she understands the extent of his/her property and how the execution of the will disposes this property upon death.
Requirements for Valid Execution
The will documents must be witnessed by two individuals and signed in the presence of the testator. Holographic wills are wills handwritten by the testator and not witnessed. Florida laws do not recognize as valid holographic wills made by individuals or married couples.
Effect of Divorce on Will
Provisions in a will regarding a spouse who, after the will is executed, is divorced from the testator become void. According to Florida law, the will then treats the divorced spouse as if he/she had died prior to the testator's death. This then affects how the property in the will is distributed (unless the will states that a different outcome is desired).
If there is a subsequent divorce and the testator marries again to a different individual, the new spouse is eligible to receive the same share of the estate that he/she would receive had a will not been in existence. This means that the pretermitted spouse (the person who would likely inherit under a will, except that the testator did not know, or did not know of, this party at the time the will was written) may receive all of the estate if the testator has no children; or 60% of the estate and an additional 50% of the remainder, if the testator pre-deceases his children.
Joint Wills of Married Couples
Joint wills may be created in Florida, as long as the will adheres to the requirements as stated in the law. No contract regarding the creation or revocation of a will between a married couple is enforceable unless the contract is in writing.