Does a Prenup Need to Be Notarized in Florida?

Does a Prenup Need to Be Notarized in Florida?

Florida’s premarital agreement act says a prenup “must be in writing and signed by both parties.” The act does not mention a notary or a witness. An agreement that touches only the divorce side, waiving nothing at death, is enforceable on those signatures alone.

A prenup that waives rights at death is different. The probate code says spousal rights “may be waived, wholly or partly, before or after marriage, by a written contract, agreement, or waiver, signed by the waiving party in the presence of two subscribing witnesses.” The requirement applies to Florida residents. For a nonresident, the waiver is valid in Florida if it was valid when signed under the law of the state or country where it was signed.

Neither statute requires a notary. The firm adds one anyway for two reasons. Recording becomes possible if the couple ever needs to attach the agreement to a homestead deed. The signature also becomes harder to dispute. A notary acknowledgment says the signer appeared and acknowledged the signature, and that acknowledgment carries weight in any later proceeding. The firm’s form includes a notary block that reads “acknowledged before me by means of physical presence or online notarization” with a box for each.

The witnesses are the part that matters on the death side. A prenup signed by both parties and notarized, without two subscribing witnesses, may protect only the divorce side.

Why Two Witnesses Matter More Than a Notary

The probate code lets a spouse waive the elective share (the roughly 30 percent of the estate a surviving spouse can claim whatever the will says), the intestate share, the pretermitted share, homestead rights, exempt property, family allowance, rights under Florida’s community property at death act, and preference in appointment as personal representative. A waiver that uses “all rights” or equivalent language covers all of them.

The waiver must be “signed by the waiving party in the presence of two subscribing witnesses.” The requirement applies to contracts, agreements, or waivers signed by Florida residents after the effective date of the law. A nonresident’s waiver is valid in Florida if it was valid where signed.

A prenup that waives only divorce rights, saying nothing about rights at death, does not need witnesses under the probate code. The premarital agreement act asks only for a writing signed by both parties. Florida’s elective-share claim, intestate claim and homestead claim would remain intact at one spouse’s death.

The difference matters because most prenups use “all rights” language. In Taylor v. Taylor, decided by the Florida First District Court of Appeal in 2009, a five-paragraph prenup said each estate would “forever remain” separate and “forever free of claim by the other.” The court held that language waived every surviving-spouse right even though the agreement never mentioned death. The court noted the agreement was signed by both parties, two witnesses and a notary. As the court put it, “[s]ection 732.702(1) does not require that the parties specify an intent to relinquish rights given to surviving spouses in order to effectively relinquish those rights.”

Who Can Be a Witness to a Prenup?

The other spouse should not serve as a witness. A person who takes under either party’s estate plan should not serve either. No published Florida appellate holding squarely addresses a spouse as witness. The Florida Fourth District Court of Appeal in Williams-Paris v. Joseph, decided in 2021, noted in passing that it “found no case law supporting the contention that one party’s signature on a contract can qualify as a subscribing witness to the other party’s signature.”

A notary who does not also sign as a subscribing witness does not count as a witness. The Williams-Paris footnote cited an earlier decision for the point that a notary who does not sign as a subscribing witness does not satisfy the requirement.

Each witness signs with a printed name beside the signature. The same two witnesses may serve both parties if convenient. At this firm, each party signs in that party’s own lawyer’s office, or both lawyers are present at one signing. Every page is initialed and the schedules are attached before anyone signs.

Two originals are signed. Each spouse keeps one and the firm keeps a copy. In Johnson v. Johnson, decided by the Florida Second District Court of Appeal in 1962, a 71-year-old widower’s lawyer explained the waiver to the housekeeper he was marrying, twice urged her to get her own lawyer, and had her sign an itemized asset statement before two witnesses. The homestead waiver was enforced, and the court said “[i]n the present case the evidence as to full and fair disclosure is overwhelming.”

What Happens If a Prenup Was Signed Without Witnesses?

In Williams-Paris v. Joseph, an 83-year-old man woke his 58-year-old fiancée at 7 a.m. on the wedding day in Massachusetts and refused to marry unless she signed. She generated an online form, and they signed before a notary only, hours before the 4 p.m. ceremony. The man later died without a will, owning a Florida homestead. The Florida Fourth District Court of Appeal held Florida law governed because the homestead was at stake. As the court said, “[w]e conclude that the trial court properly applied Florida law, rather than Massachusetts law, in determining the overall validity of the prenuptial agreement because a significant asset involved in the agreement was the decedent’s homestead.”

The court noted in a footnote that the two-subscribing-witness requirement did not look satisfied by a notary alone. The court did not decide the point because nobody had raised it in the trial court. The footnote is not a holding, but it signals the risk.

A prenup signed without witnesses may still protect the divorce side. The premarital agreement act asks only for a writing signed by both parties. The waiver of rights at death is the part that depends on the witnesses.

The repair is a reaffirmation or amendment signed before two witnesses. After marriage, Florida law says a prenup “may be amended, revoked, or abandoned only by a written agreement signed by the parties.” A later postnuptial agreement can ratify a prenup that was voidable. In Bakos v. Bakos, decided by the Florida Second District Court of Appeal in 2007, the court recognized that a later postnup can ratify a prenup if the postnup itself passes Florida’s standard for marital agreements. No published Florida appellate holding has decided whether a reaffirmation signed before two witnesses cures a prenup that originally lacked them.

Can You Sign a Prenup Online or From Home?

Florida allows online notarization from anywhere. A Florida online notary appears by audio-video technology from inside the state, and the signer may be anywhere in the world. A remote witness must be physically located within the United States at the time of witnessing and must verbally confirm that fact.

A prenup that waives spousal rights at death triggers extra safeguards when fewer than two witnesses are physically in the room. The online notarization platform must ask the signer three screening questions about impairment, disability, and daily care. If any answer is yes, the signature is valid only if witnessed by people physically present. The platform must then give written notice that a vulnerable adult cannot validly sign with remote witnesses.

During the video session the notary must ask five identity questions, including whether the signer is married, who helped access the call, who helped prepare the documents, where the signer is located, and who is in the room. An incorrect answer may be offered as evidence about the agreement’s validity, but an incorrect answer alone cannot serve as the sole basis to invalidate the agreement.

Remote witnessing is not effective for a signer who is a vulnerable adult. The person challenging the agreement has the burden of proving the signer was a vulnerable adult at the time of signing.

None of these requirements apply when two witnesses are physically present with the signer. The firm’s form allows electronic signatures and counterparts, meaning each party may sign a separate copy and each counterpart is treated as an original. The execution date is the later of the two signing dates. The form is void if the marriage does not occur within 12 months after the execution date.

Does a Prenup Have to Be Recorded or Filed?

A prenup is not filed with any court or clerk. Recording in the public records is not required either, and the firm’s practice is to skip recording unless a homestead deed needs the agreement attached. Otherwise the agreement stays private.

Confidentiality matters because the financial disclosure schedules list account balances, business interests and estate plan provisions. The firm’s form says the agreement and its exhibits are confidential, disclosed only to each party’s lawyers, accountants, financial advisors and estate planners, or as required by law or court order. In any proceeding a party is to disclose the agreement only to the extent necessary and is to seek to file it under seal where permitted.

Two originals are signed. Each spouse keeps one and the firm keeps a copy. Every page is initialed by both parties. The financial disclosure schedules are attached before anyone signs so that no one can later claim the schedules were added after the fact.

In a divorce the agreement becomes an exhibit in the case file. At that point the schedules enter the record. Keeping the exhibits off the public record until litigation protects both parties during the marriage.

What the Signing Looks Like at This Firm

1. The final draft is circulated with receipt dates recorded. The firm’s form notes the date each party first received the agreement in substantially final form and the date each party first received the other party’s financial disclosure.
2. Each party signs in that party’s own lawyer’s office, or both lawyers are present at one signing.
3. Every page is initialed by the signer. The financial disclosure schedules are attached before signing begins.
4. Each party signs before two subscribing witnesses and a notary. The same two witnesses may serve both parties if the signing happens together. Neither witness should be the other spouse or a person who takes under either estate plan.
5. Each party’s lawyer signs a certification confirming that the lawyer advised the party of the rights and obligations that would otherwise accrue under Florida law by virtue of the marriage, including equitable distribution, alimony and the rights of a surviving spouse.
6. Two originals are signed. Each spouse keeps one original and the firm keeps a copy.
7. After the wedding, each party signs spousal consent forms for retirement plans within 30 days under the firm’s form. Within 90 days each party signs a written reaffirmation with the same formalities as the original agreement, stating that the financial disclosure remains substantially accurate or supplementing it. The agreement stands on its own if the reaffirmation is never signed.

What a Prenup Costs, and What the Signing Includes

Drafting a prenup for one spouse is a flat fee from $2,450. The fee covers the first draft, up to two rounds of revisions with the other spouse’s lawyer, the financial disclosure schedules, and a signing with two witnesses and a notary. Negotiation beyond two rounds is quoted in writing before it begins.

Reviewing a prenup the other side drafted is a flat fee from $750. The review includes a written analysis in plain English measured against Florida’s default rules and a call with the attorney.

A postnuptial agreement is a flat fee from $2,950. The fee is higher because Florida requires fair financial disclosure before a waiver of rights at death signed after the wedding is valid.

A challenge to an existing agreement, and any divorce litigation, is quoted per matter.

The firm represents one spouse only. One lawyer cannot represent both sides of the same agreement. The other spouse chooses their own lawyer, and the firm gives a list of names.

The free 30-minute consultation is by phone, Zoom or WhatsApp. Fees were posted October 6, 2026 and are honored for 90 days from that date. Government costs are additional and passed through at cost.

Frequently Asked Questions

Common Situations

A couple married in another state and signed a prenup there before a notary only, with no witnesses. Years later they moved to Florida and bought a home. The husband’s lawyer advised that Florida law requires two subscribing witnesses for any waiver of homestead or elective-share rights. The couple signed a written reaffirmation, each before two neutral witnesses and a notary, reciting that the original financial disclosure remained accurate.

A bride-to-be was in another state at her mother’s home on the day of the signing. She appeared by audio-video technology through an online notarization platform with a Florida online notary. Two witnesses were on the video call, each physically in the United States. Because the agreement waived rights under the probate code, the notary asked the three screening questions and the five identity questions required by Florida law. She answered each, signed electronically, and the witnesses subscribed remotely. The agreement was effective on the marriage.

Sources of Law

• Formalities: Fla. Stat. §61.079(3) (2026) (a premarital agreement must be in writing and signed by both parties; enforceable without consideration other than the marriage); §61.079(6) (after marriage, amended, revoked or abandoned only by a written agreement signed by the parties); §61.079(10) (the act does not alter the required formalities of agreements under §§732.701 to 732.702).
• Witnesses: Fla. Stat. §732.702(1) (2026) (spousal rights at death may be waived "by a written contract, agreement, or waiver, signed by the waiving party in the presence of two subscribing witnesses"; the witness requirement applies to instruments signed by Florida residents after the effective date; a nonresident's waiver is valid if valid where executed; "all rights" language); §732.702(2) to (3). History includes s. 10, ch. 2024-238.
• Remote witnessing and online notarization: Fla. Stat. §117.285(1), (3), (4), (5), (7), (8) (2026) (a waiver of spousal rights under §732.702 signed with fewer than two witnesses physically present triggers the screening questions, the vulnerable-adult rule and the five identity questions; a remote witness must be in the United States); §117.265(1) (an online notary physically in Florida may act regardless of where the principal or witnesses are).
• Cases, each read in full: Williams-Paris v. Joseph, No. 4D20-1760 (Fla. 4th DCA Nov. 17, 2021) (substituted opinion; Florida law governs validity where homestead is at stake; footnote 1 on the two-subscribing-witness requirement is dictum, citing McKoy v. DeSilvio, 974 So. 2d 539 (Fla. 2d DCA 2008), which was not read for this page); Taylor v. Taylor, 1 So. 3d 348 (Fla. 1st DCA 2009); Johnson v. Johnson, 140 So. 2d 358 (Fla. 2d DCA 1962); Stregack v. Moldofsky, 474 So. 2d 206 (Fla. 1985); Bakos v. Bakos (Fla. 2d DCA 2007) (a later postnuptial agreement may ratify a voidable prenup if it passes Casto); Wilson v. Wilson (Fla. 4th DCA 2019). Reading note: the two-subscribing-witness requirement of §732.702(1) has not been construed in a published Florida appellate holding in the firm's 120-opinion corpus; the older death-side cases were decided under a version of the statute that required only the waiving party's signature and cannot be cited on witnesses. Every court quotation on this page was copied from the opinion file under reference/caselaw/prenup/61079/ (official slip text or CourtListener opinion text, read in full) and checked against it by script; see reference/caselaw/QUOTE-DISCIPLINE.md. Statute text retrieved 2026-10-28 from the 2026 Florida Statutes. No published Florida appellate decision in that corpus applies §61.079(7) to a premarital agreement signed on or after October 1, 2007; Bates describes the subsection as a codification of Casto.

Related Guides

Florida prenuptial agreements · how long before the wedding to sign · the financial disclosure a prenup requires · prenup review before you sign · does a prenup apply at death? · a prenup signed in another state or country · postnuptial agreements · what makes a prenup invalid · the spousal waiver of homestead

What I Look for in the Signature Block

In 14 years of law practice, I see agreements signed elsewhere arrive with a notary block and no witness lines, and the couples assume everything is in order. I have a few take-home points.

The first is that two subscribing witnesses are what the probate code requires when a Florida resident signs a waiver of rights at death. A notary confirms identity, but the witnesses confirm presence at the signing. The Florida First District Court of Appeal decided Taylor v. Taylor in 2009. A five-paragraph agreement said each estate would “forever remain” separate and “forever free of claim by the other.” The court held that language is an “all rights” waiver of every surviving-spouse right even though the agreement never mentions death. The agreement was signed by both parties, two witnesses and a notary. The court said, “Section 732.702(1) does not require that the parties specify an intent to relinquish rights given to surviving spouses in order to effectively relinquish those rights.”

The second is that the waiver at death and the waiver at divorce travel different roads. An agreement can hold on the divorce side, where only the signatures matter, while the death-side waiver fails for want of witnesses. A surviving spouse could claim the elective share (the roughly 30 percent of the estate a surviving spouse can claim whatever the will says) even after years of marriage.

Avoid signing without two witnesses present. The notary alone is not enough under the probate code, and fixing the gap after the wedding requires both spouses to sign a new instrument with the same formalities.

One honest limit is that no published Florida appellate holding decides whether a notary-only signing fails the witness rule. A 2021 decision raised the question in a footnote and left it open, so nobody can promise the answer today.

Kevin D. Klagge, Esq., admitted in Florida since 2012. General information rather than advice on your situation.

Updated on October 28, 2026. Reviewed by Kevin D. Klagge, Esq., Fla. Bar No. 99502. General information about Florida law, not legal advice, and no attorney-client relationship is created. Do not send confidential information until we have agreed to represent you.