Can a Prenup Protect Future Assets in Florida?

1. Can a Prenup Protect Future Assets in Florida?

Yes. Florida’s premarital agreement statute lets spouses contract on their rights in property “whenever and wherever acquired,” and it defines property to include an interest “present or future” and income and earnings, both active and passive. The agreement can therefore reach what a spouse earns, buys and builds after the wedding.

The default rule runs the other way. Under Florida’s divorce statute, assets acquired during the marriage by either spouse are marital, and any asset acquired after the wedding and not established as nonmarital is presumed marital. A written agreement is one of the listed ways to exclude an asset. A prenup is therefore the tool that turns the default off, and the wording decides how much it turns off.

In Hahamovitch, a husband of 46 and a wife of 28 signed a prenup in January 1986 with lawyers and accountants on both sides, and they married a month later. After 22 years the couple filed for divorce, and the wife argued that the agreement never mentioned the husband’s earnings or the growth of his property, so both were marital. The agreement had a broad release of her claims to his property, a clause that each spouse would keep sole ownership of property owned or acquired in that spouse’s name, a clause that neither would ever claim any interest in the other’s property, and a clause that property the husband acquired in his own name was his. The Florida Supreme Court held that the broad language covered property he owned at signing and property acquired in the future, with its enhancement. The agreement had also promised the wife about $1.9 million over seven years.

2. Does a Prenup Protect Property That Grows in Value?

A common question I hear is, “If my house goes up in value during the marriage, is the increase still mine?” Under the statute, growth that comes from the efforts of either spouse or from marital money is marital, and so is a share of the mortgage principal paid from marital funds on nonmarital real property. Growth from the market alone generally stays with the owner, apart from the share the paydown formula assigns. A prenup can move the line, and the wording decides where.

In Doig, the husband presented an agreement ten days before the wedding that said neither spouse would claim an interest in the other’s separate property “if it increases in value during the marriage.” Both spouses contributed to the maintenance and improvement of the husband’s house. The Second District read the clause to address passive appreciation only, so the wife kept a claim to half of the enhancement. The trial court had awarded her $28,500, half of a $57,000 enhancement, and the appellate court corrected the award to $7,800, half the difference between a $110,000 value and a $94,400 purchase price.

In Felice, a May 2000 prenup dealt only with the husband’s Marco Island home. The husband was to be “entitled to any and all equity and rights of ownership” in it, and the wife was to have no interest in it. The agreement never mentioned appreciation, and the trial court counted $197,226 of marital paydown and appreciation as marital. The Second District reversed after the Florida Supreme Court’s 2015 decision in Hahamovitch. Felice shows that broad words about one asset can carry its growth, and Doig shows that a clause naming growth can still fail. In Herrera, the wife testified that her husband spent $90,000 of marital funds to pay off the mortgage on his premarital home and built an addition, and the Third District treated the resulting $100,000 of enhancement as marital under the statute.

A clause that works names active and passive growth, growth from marital funds and from either spouse’s labor, and appreciation from any cause. In my practice, I read the growth language of a clause before anything else, because that is where these cases turn.

3. Can a Prenup Protect a Future Inheritance?

A prenup treats an inheritance differently in a divorce and at death.

In a divorce, an inheritance one spouse receives alone is nonmarital under the statute, and income from nonmarital assets stays nonmarital unless the spouses treated, used or relied on it as marital. Marital funds or effort spent on the asset convert its growth. A prenup can name inheritances, their income and their growth, and say what happens if the money is mixed with joint funds. Is an inheritance marital property in Florida? covers how mixing happens.

At death, a different statute applies. The elective estate that supports a surviving spouse’s 30 percent claim lists property by how it is held, such as probate property, jointly held accounts, revocable trust assets and retirement benefits. An inheritance in the decedent’s name is part of the probate estate. Only a signed waiver of the surviving spouse’s rights changes that, and how a prenup works at death explains the formalities. A parent who wants a child’s inheritance kept away from the child’s spouse has another route in a trust for the child.

4. Can a Prenup Protect My Pension or 401(k)?

Retirement benefits that accrue during the marriage are marital under the divorce statute, whether vested or not, so a prenup is how a spouse keeps a plan separate in a divorce. Florida courts enforce that kind of clause.

At death, federal law decides who the plan pays, and a prenup cannot waive a spouse’s rights under it. The Treasury regulations ask whether consent in an antenuptial agreement satisfies the plan’s spousal-consent rules, and answer that an agreement entered into before marriage does not, even if it is signed inside the plan’s election period. The Second Circuit applied that rule in 1992 to a widow’s claim to her husband’s profit-sharing plan. Her prenup released her rights in property “now owned or hereafter acquired” by him, and the plan still went to her. The spouse must sign the plan’s own consent form after the wedding. What I have not seen is a prenup that changed who a 401(k) pays at death without the plan’s own form. The steps by plan type are on the 401(k) and pension page.

5. Does a Prenup Protect Future Earnings and a Business?

Paychecks earned during the marriage are marital property by default, and so is a business interest that grows during it. The statute treats the marital interest in a closely held business at fair market value, and enterprise goodwill, which is goodwill separate from the owner’s continued presence and reputation, is a marital asset the court must value.

A business owner’s prenup commonly addresses three points. It defines the business, with its earnings and growth, as separate. It says whether the owner’s salary is separate or marital. It states how value is measured if a dispute arises. Prenups for business owners covers the clauses, and what a prenup costs explains how complexity drives the number.

6. Does a Prenup Reach Rights the Law Creates Later?

A prenup can reach them. The surviving spouse’s rights are set by statute, and the Legislature has changed them. In Garcia the Third District held that a husband’s waiver of rights to his wife’s assets included rights later created by the Legislature. The wording that did it was broad.

Florida’s current waiver statute lets a spouse waive the elective share, intestate share, pretermitted share, homestead, exempt property, family allowance, community property rights and the preference to serve as personal representative, in a writing signed before two subscribing witnesses. A waiver of “all rights” covers all of them unless the waiver says otherwise. A drafter who names each right and adds “now or hereafter existing” leaves a court little to construe. For a prenup signed before the wedding, no financial disclosure is required for the death-side waiver, which makes each spouse’s own lawyer the protection.

What It Costs

A prenup drafted for one spouse is a flat fee from $2,450, a postnup drafted for one spouse is a flat fee from $2,950, and a review of an agreement the other side drafted is a flat fee from $750. What each fee includes is on the prenup page. The fees are honored for 90 days from October 6, 2026, and government costs are additional and passed through at cost.

Frequently Asked Questions

Common Situations

The engineer with stock options. The options vest during the marriage, so the clause has to say who owns the shares, the growth and the proceeds, and when the grant counts as acquired.

The nurse expecting a parent’s house. The inheritance may arrive after the wedding. The clause names inheritances, gifts and their income, and the account is kept in one name.

Alimony is a separate subject, and can a prenup waive alimony covers it.

Sources of Law

• Fla. Stat. §61.079(2)(b), (4)(a)1 and (6) (property, contract subjects, amendment). Fla. Stat. §61.075(6)(a)1.a, b, c, e and f, (6)(b)2 to 4, and (8) (marital and nonmarital assets, presumption, retirement benefits, closely held business).
• Fla. Stat. §732.2035 (elective estate); §732.702 (waiver of spousal rights, two subscribing witnesses, “all rights,” no disclosure before marriage).
• Hahamovitch v. Hahamovitch, 174 So. 3d 983 (Fla. 2015), approving 133 So. 3d 1008 (Fla. 4th DCA 2014), and disapproving Irwin v. Irwin, 857 So. 2d 247 (Fla. 2d DCA 2003), and Valdes v. Valdes, 894 So. 2d 264 (Fla. 3d DCA 2004), to the extent of conflict; Doig v. Doig, 787 So. 2d 100 (Fla. 2d DCA 2001); Felice v. Felice, 194 So. 3d 1037 (Fla. 2d DCA 2016); Herrera v. Herrera, 895 So. 2d 1171 (Fla. 3d DCA 2005); Estate of Garcia v. Garcia, 399 So. 2d 486 (Fla. 3d DCA 1981). Opinions read in full.
• Treas. Reg. §1.401(a)-20, Q&A-28 (consent in an antenuptial agreement), as quoted in Hurwitz v. Sher, 982 F.2d 778 (2d Cir. 1992). Elaine M. Bucher, “Relationship Dissolution Planning, Part 1: Nuptial Agreements,” Fla. Bar J., Vol. 80, No. 10 (Nov. 2006) (practitioner checklist on earnings, appreciation and ERISA).
• Statutes and opinions retrieved 2026-10-07. Garcia applied an earlier text of §732.702 that required a writing signed by the waiving party and no witnesses; it is cited here only for rights created after signing.

When the Law Changes After the Agreement Is Signed

Many cases like this keep coming up with the same gap, which is a clause that covers what a spouse owns on the wedding day and says nothing about rights and assets that arrive later.

Carlos Garcia and Encarnacion Luaces signed an antenuptial agreement a few days before their 1956 marriage. In it Carlos agreed that if she died first he would assert no “claim, interest, estate or title” in her property, and that he relinquished “any and all of his claim, distributive share, interest, estate or title” as surviving husband. The agreement also said that if either died with a will, the survivor could still take under it. In 1973 Encarnacion made a will giving Carlos a life estate in her home and, a few days later, a codicil giving him $14,000 a year from the interest on bonds.

The Legislature replaced dower with the elective share effective January 1, 1976. Encarnacion died on February 21, 1979, and Carlos claimed an elective share of her estate. The trial court held that he had waived everything except the elective share, because a person cannot waive a right that does not exist yet. The Third District reversed in 1981, holding that he had relinquished a right the Legislature created twenty years after he signed, and it affirmed that he had also waived homestead. The agreement left Carlos free to take under her will, and it barred the statute’s share.

I have a few take-home points.

The first is that the clause was broad and had no expiration. It spoke of “any claim” in her property, and the court read that to include a right nobody could name in 1956.

The second is the court’s reasoning that a spouse who signs before the wedding already gives up rights in assets of unknown size, and that the absence of a disclosure requirement for premarital waivers supports a waiver of the unknown.

The third is that the agreement protected a plan she wrote 17 years after the wedding. The will gave him a life estate and an income, and the waiver left the rest of the estate to pass under the will.

Practice pointer. Name each right the waiver covers, add “now or hereafter existing,” and keep the agreement next to the current will, because the waiver and the will have to be read as one plan.

Avoid a clause that lists only the rights in the statute as it reads on the wedding day, because the statute changes.

An honest limit belongs here. Garcia applied the version of the waiver statute that required no witnesses, so a waiver today also needs two subscribing witnesses, and a court deciding a new wording might read it differently. Whether your clause reaches a right that does not exist yet depends on the words we choose, which is a judgment we make together.

Kevin D. Klagge, Esq., admitted in Florida since 2012. The case above is a published opinion in other parties’ matter, not a matter this firm handled, and it predicts nothing about yours.

Updated on October 7, 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. Each spouse should have independent counsel. Do not send confidential information until we have agreed to represent you.