Prenuptial Agreements in Florida [for Estate Planning]

When most people think about prenuptial agreements in Florida (a/k/a premarital agreements), they immediately visualize the stereotypical rich older man marrying a young babe…or perhaps the wealthy “cougar” marrying the svelte young muscle head.

These kinds of albeit stereotypical circumstances often lead to marital disputes, thereby requiring a strict marital agreement to protect the spouse with deep pockets.

This article will dive a bit deeper into the need for prenuptial agreements, not only for marital risk planning, but also for estate planning in Florida.

Prenuptial vs. Postnuptial Agreements

Prenuptial or premarital agreements in Florida (a/k/a “prenup”) is similar to a postnuptial (a/k/a “postnup”) with the difference being when they are signed. Nuptial simply refers to a legal civil marriage ceremony. I’ll let you figure out the “pre” and “post” part.

The term “nuptial” refers to a legal civil marriage AND the difference between the prenuptial and postnuptial is simply whether the agreement is signed prior to OR following the initiation of the legal marriage. 

Both types of nuptial agreements are otherwise similar AND both are actually very important agreements that pertain to Florida asset protection when entering into a new and perhaps untested marriage.  They are also both critical documents for estate planning in Florida and both variations of the nuptial (marital) agreement involve similar rules and concerns to make sure they’re enforceable.

Pre-Marital Agreements in Florida – Divorce vs. Death

When referring to distributions between spouses, remember that we are talking about the two very different circumstances of divorce and death of a spouse.

Premarital Agreements and Death of a Spouse

The key to any marital agreement for estate planning purposes, which is planning for the death of a spouse, is that prenups are used to preserve the “non-marital” estate assets for one spouse’s beneficiaries other than the surviving spouse.

Marital 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 are defined as the spousal elective share in Florida that directly relate to the legal contract of civil marriage and these rights can only be waived by an enforceable marital agreement.

Estate planning with prenuptial agreements is accomplished by contractually keeping the happy couples’ respective assets separate.  Which allows the couple to decide, and NOT the default state laws, how to distribute the assets between the spouses as well as other beneficiaries.

Disinheriting a Spouse in Florida

You may be wondering why one spouse with separate assets can’t just “disinherit” the other spouse.

In many states, a spouse cannot be disinherited, so the only way to legally enforce not giving anything to a surviving spouse is by a marital agreement.

In Florida, a disinherited spouse who isn’t happy with the deceased spouse’s decision may opt out the entire plan and instead claim his/her elective share rights. This is true even if the estate is titled in a Florida living trust OR an irrevocable trust in Florida that was created during the marriage.  If the aggrieved spouse in Florida does chose the elective share, SHE or HE may be granted a portion of the estate regardless of the discussions between the parties OR what is written in the estate planning documents. Another important point is that the elective share can be enforced whether the estate is in a Florida probate or trust administration in Florida.

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 and Divorce 

Upon divorce, the court’s analysis of the estate assets is different than upon the death of one spouse. Rather than the spousal waiver of Florida homestead protection or spousal elective share, the courts will be more concerned about alimony and waiver of spousal rights to property accrued during the marriage. Child support and the division of marital property is also a key part of divorce, as is defining marital vs. non-marital property.

With that in mind, the best Florida 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 other 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.

Enforceable Prenuptial Agreements in Florida

In Florida, and most other states, prenuptial and postnuptial agreements must be drafted and signed with proper formalities in order to be found to be enforceable if they are challenged down the road.

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.  

Clear Waivers

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 Florida prenuptial 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 Enforcement Tips!  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. In other words, there is a presumption that the marriage may NOT have occurred without one.

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 waive his/her rights upon death.

The short answer is that the well drafted prenuptial agreement 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 short 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 critical estate planning updates following divorce in Florida.

This post is updated from an earlier article published in September 2016.