How Can a Florida Premarital Agreement Affect Your Future Probate Estate?

Premarital agreements–prenups–are often associated with divorce. But a prenup can also address what will happen to a couple’s assets when either of them dies during the marriage. That is why it is important to understand the law surrounding premarital agreements here in Florida and how it can affect your future probate estate.

What Is a Prenup?

Florida law defines a premarital agreement as a legal contract “between prospective spouses made in contemplation of marriage.” The prenup itself only takes effect if and when the parties actually marry. Florida requires all prenups to be in writing and signed by both parties.

There is no one-size-fits-all prenup. A premarital agreement can cover a wide range of subjects. As it relates to probate and estate planning, a prenup may address:

• the disposition of any property upon the death of either spouse;
• waiver of a spouse’s rights under Florida probate law, such as the surviving spouse’s right to take an elective share of the deceased spouse’s estate, or the spouse’s homestead rights in the couple’s marital home;
• the ownership rights in, and disposition of, the death benefits from a life insurance policy on the life of either spouse; and
• the making of a will or trust to carry out the terms of the premarital agreement.

Once a prenup takes effect upon the parties’ marriage, it can only be amended or revoked by a separate, written agreement between the spouses.

When Is a Prenup Unenforceable?

A Florida court can decline to enforce the terms of a premarital agreement under any of the following conditions:

• the spouse opposing enforcement can prove they did not sign the prenup voluntarily;
• the agreement was the product of fraud duress, coercion, or overreaching; or
• the agreement was unconscionable when signed.

One additional note: If a prenup contains terms that waive any or all of a spouse’s probate rights, Florida law requires the agreement be signed in the presence of at least two witnesses.

Premarital vs. Postmarital Agreements

Many couples wait until after marriage to make an agreement regarding the disposition of their property and legal rights upon the death of either spouse. Such postmarital (or “postnuptial”) agreements are just as valid as prenups and largely must follow the same legal formalities. One key difference is that Florida law requires each spouse to make a “fair disclosure” of their estate as a precondition of signing a postnuptial agreement. Such disclosure is not legally required, however, for premarital agreements, although it is still generally a good idea for the parties to do so.

Contact a Pompano Beach Estate Litigation Attorney Today

While premarital and postmarital agreements are intended to help couples avoid litigation, disputes can and do arise, especially when one spouse dies and an agreement may affect the survivor’s inheritance rights. If you are involved in such a dispute and need legal advice from a qualified Pompano Beach prenuptial and postnuptial agreements lawyer, contact the office of Mark R. Manceri, P.A., today to schedule a consultation.

Source:

leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0000-0099/0061/Sections/0061.079.html