When most people think about prenuptial agreements in Florida (or any other state), they immediately visualize the stereotypical rich older dude marrying a young babe…or perhaps its the wealthy “cougar” marrying the svelte young muscle head. But I digress.
Prenuptial agreements in Florida (a/k/a “prenup”), as well as its alter ego the post-nup (“postnuptial agreement”) are actually very important documents for estate planning in Florida. Both variations of the nuptial agreement involve similar rules and concerns.
Nuptial refers to marriage and the difference between the prenuptial and postnuptial is simply whether the agreement is signed prior to OR following the initiation of a legal marriage.
The key to any nuptial agreement for estate planning purposes is it is a way to preserve “non-marital” assets for other non-spousal beneficiaries, such as adult children from a prior marriage. This is accomplished by contractually keeping the happy couples’ respective assets separate. This allows the couple, in turn, and NOT the default state laws to decide how to distribute the assets between the spouses as well as other beneficiaries.
Prenuptial Agreements in Florida – Divorce vs. Death Distributions
When referring to distributions between spouses, remember that we are talking about the two very different circumstances of divorce and death of a spouse.
Prenuptial Agreements and a Spouse’s Death in Florida
Nuptial agreements offer what may be an essential protection where there is a second marriage AND children from a previous marriage. There are certain legal rights upon death that directly relate to the legal contract of civil marriage and these rights can only be waived by an enforceable agreement known as a prenuptial or postnuptial agreement.
The Difficulty of Disinheriting a Spouse in Florida
In certain states such as Florida, a spouse cannot be disinherited and thus the only way to legally enforce not giving anything to a surviving spouse is by a nuptial agreement.
In Florida, a spouse who isn’t happy with the deceased spouse’s estate plan may opt for his/her elective share rights, thereby setting aside the deceased spouse’s estate plan. If this happens, the spouse may be granted a portion of the estate regardless of the agreement or the parties as written in the estate documents.
In Florida, the homestead laws also protect the surviving spouse and prevent the deceased spouse from giving the marital home to the third party, even if the surviving spouse was not on the title.
Prenuptial Agreements in Florida and Divorce
Upon divorce, rather than the spousal waiver of homestead or elective share rights, the courts will be more concerned about alimony and waiver of spousal rights to property accrued during the marriage.
A solid prenuptial agreement will provide a working definition of what constitutes marital property if property was acquired during the marriage. For example, if property was acquired with one of the spouse’s non-marital accounts (separate property) then perhaps it will be deemed non-marital and the divorcing spouse may NOT claim it. The prenup may also provide a complete waiver of alimony, and thus even if one spouse is much more wealthy, the would not be entitled to this kind of spousal support.
Note, child support is NOT subject to waiver in a prenuptial agreement because it is intended to benefit and care of the children and NOT spouses.
Enforcing Prenuptial Agreements in Florida
Prenuptial and postnuptial agreements in Florida must be drafted and signed properly in order to be enforceable.
Due to the fact that the spouses’ respective property rights have been modified by this prenuptial agreement, the next question becomes whether it is enforceable. This question becomes especially important when one of the spouses challenges the agreement.
A well drafted nuptial agreement will include easy to understand waivers concerning the various rights noted above. By well drafted, I mean that a waiver of elective share rights and a homestead waiver should be specified in the agreement AND not buried in the boilerplate. By specified, I mean conspicuously stated with headings and with sections separately initialed by both the spouses.
Financial Statements and Full Disclosure
It is also very important that a financial statement of some kind be attached to the agreement for both spouses. The financial statement should include all assets at the time of the agreement and should also include an ERISA waiver for financial retirement accounts. I also recommend that the agreement acknowledge the fact that the financial circumstances may change dramatically during the course of the marriage and that each party understands and accepts this fact.
Helpful Tip! Prenuptial agreements (signed prior to marriage) are easier to enforce, in my opinion, than postnuptial agreements (signed after marriage) because the implication is that the prenup was a precondition and consideration for the marriage. Also, it is very important to allow a waiting period before the marriage to allow time to process and review the prenuptial agreement. For this reason, prenups signed at the alter would be considered highly suspicious and arguably non-enforceable.
A fair question may be whether another less formal agreement would work for one spouse to waiver his/her rights upon death. The short answer is that the well drafted prenuptial or postnuptial agreement is most effective because of the full disclosure and formalities that characterize it and thus make it enforceable.
Another fair question is to ask whether any of this prevents one spouse from giving gifts to another either during lifetime OR upon death. The answer is nothing prevents such gifts; HOWEVER, the prenuptial should specify steps to take to make sure that such gifts are upheld.
One more important point…if you’ve recently undergone or are undergoing a divorce, there are some important estate planning moves to make following divorce in Florida.
This post is updated from an earlier article published in September 2016.