Florida Prenuptial Agreements

A Florida prenuptial agreement -- also called a premarital agreement or "prenup" -- is a written contract signed before marriage that determines how property, debts, and support will be handled if the marriage ends in divorce or death. Florida adopted the Uniform Premarital Agreement Act in Chapter 61, Part II of the Florida Statutes. A properly drafted, properly executed prenup is a powerful tool for protecting premarital assets, family businesses, and inheritances.

What a Prenup Can Cover

Florida Statutes § 61.079(4) lists topics that a prenup may address:

• Each party's rights and obligations in any property, whenever and however acquired
• The right to buy, sell, transfer, manage, or otherwise control property
• The disposition of property on separation, divorce, death, or another event
• The modification or elimination of alimony
• The making of a will, trust, or other arrangement to carry out the agreement
• The ownership and disposition of life insurance proceeds
• The choice of law governing the agreement
• Any other matter, including personal rights and obligations, not in violation of public policy

What a Prenup Cannot Cover

A prenup cannot adversely affect a child's right to support. Child support is a right of the child, not a right the parents can waive. The same is true of time-sharing: parents cannot bind a future court's best-interest analysis by contract. Provisions that attempt to do either are unenforceable, though they will not necessarily void the rest of the agreement.

Enforceability Requirements

Florida Statutes § 61.079(7) sets out when a prenup is enforceable. The challenging party must prove one of the following:

• The agreement was not signed voluntarily
• The agreement was the product of fraud, duress, coercion, or overreaching
• The agreement was unconscionable when it was signed and, before signing, the challenging party was not provided a fair and reasonable disclosure of the other party's property and financial obligations, did not voluntarily and expressly waive in writing the right to that disclosure, and did not have or could not reasonably have had adequate knowledge of the other party's property and financial obligations

In practice, the most common enforceability fights involve disclosure -- whether the financial schedule attached to the agreement accurately reflected the wealthier spouse's assets and income at the time of signing.

Best Practices for an Enforceable Florida Prenup

• Independent counsel for each party. Not legally required, but the single best protection against later claims of duress or coercion.
• Complete written financial disclosure. A schedule of assets, liabilities, and income, supported by tax returns and statements, attached as an exhibit.
• Sign well before the wedding. A prenup signed days before the wedding, especially when invitations have already been sent, is a much easier target for a duress claim. Several weeks of lead time is ideal.
• Avoid one-sided terms that shock the conscience. A prenup that leaves one spouse with nothing after a long marriage may be set aside as unconscionable.
• Update the agreement if circumstances change materially. A prenup signed in your 20s may be unsuitable after two children and a 25-year career.

Modification or Revocation

A Florida prenup can be amended or revoked after marriage only by a written agreement signed by both spouses. No consideration is required beyond the marriage itself. A subsequent oral modification is not enforceable.

Postnuptial Agreements

A postnuptial agreement serves the same function but is signed after the marriage. Postnups are evaluated under common law contract principles rather than the Uniform Premarital Agreement Act, and Florida courts apply heightened scrutiny to them because of the fiduciary relationship between spouses.

Call 786-522-1411 to draft or review a Florida prenuptial agreement.