What Is a Postmarital Agreement in Florida?

What Is a Postmarital Agreement in Florida?

A postmarital agreement is a written contract between two people who are already married. The agreement settles property, debts, support and rights at death, and a Florida court judges it under the rules for agreements signed after the wedding.

Florida’s probate statute speaks of a waiver signed “before or after marriage” and never uses the word postnuptial or postmarital. Florida’s courts use “postnuptial agreement” in their opinions. The Florida Bar’s treatise on marriage contracts uses “marital agreement” for both. Postmarital is the plain English form and names the same document.

The agreement puts in writing what each spouse keeps, what each spouse gives up, and what happens if the marriage ends by divorce or by death. The agreement can cover property owned now, property acquired later, income, business interests, retirement accounts, debts, alimony, and every surviving-spouse right the probate code creates.

A postmarital agreement is judged more strictly than a prenup because spouses owe each other a fiduciary duty that engaged couples do not. Florida law requires fair disclosure when the agreement is signed after marriage.

The firm drafts postmarital agreements for one spouse at a flat fee from $2,950. The other spouse needs their own lawyer. A free consultation is the first step.

Postmarital, Postnuptial, Marital Agreement and Prenup: Which Word Means What?

Florida lawyers use several terms that sound alike but name different documents. The table below sorts them out.

A marital settlement agreement is the contract two spouses sign to end a marriage in a divorce case. A marital settlement agreement is governed by the court’s judgment and by a different rule, not by the Casto test. A postmarital agreement is signed while the marriage is intact and is built to survive for years.

When someone asks about a “post marriage prenup” or a “prenup after the wedding,” the answer is a postmarital agreement. A prenup, by definition, is signed before the wedding.

What Happens Without a Postmarital Agreement in Florida?

Florida law fills in every gap a married couple does not settle by agreement. The defaults are generous to a surviving spouse and divide marital property roughly in half at divorce.

At divorce, Florida is an equitable distribution state. The court first sets aside each spouse’s nonmarital assets and debts. The court then starts from the premise that the marital assets should be divided equally and departs from equal only on listed factors, including contributions, length of the marriage, career interruption and dissipation within two years before filing. Alimony depends on need and ability to pay. Permanent alimony no longer exists for petitions filed on or after July 1, 2023, but durational alimony can run up to 75 percent of the length of a long marriage.

At death, a surviving spouse has the elective share, which is 30 percent of the elective estate. The elective estate reaches more than the probate estate and includes revocable trust assets, survivorship accounts, the cash value of life insurance and retirement death benefits. The surviving spouse also has homestead rights (a life estate or an elected half interest), exempt property up to $20,000 of furnishings plus two vehicles, and the family allowance of up to $18,000.

A postmarital agreement can change every one of those defaults by written contract.

What Makes a Postmarital Agreement Enforceable in a Florida Divorce?

A Florida court judging a postmarital agreement on the divorce side applies the two grounds the Florida Supreme Court set out in Casto in 1987.

In Casto, the wife of a shopping-center developer signed for about $225,000 against assets that may have been worth $10 million. The husband refused to give her a financial statement, threatened to “blow up the house and throw Clorox all over her clothes,” and steered her to a lawyer the Court called “pro forma.” The agreement was set aside.

The Court stated the two grounds on which a spouse may set aside a marital agreement. “First, a spouse may set aside or modify an agreement by establishing that it was reached under fraud, deceit, duress, coercion, misrepresentation, or overreaching.” The second ground is unconscionability at the time of signing, coupled with a failure of disclosure and knowledge. “The test in this regard is the adequacy of the challenging spouse's knowledge at the time of the agreement and whether the challenging spouse is prejudiced by the lack of information.”

A bad bargain freely made is enforceable. The Court wrote, “If an agreement that is unreasonable is freely entered into, it is enforceable.” Bad legal advice is not a ground to void the agreement. “This Court has expressly held that incompetent legal advice is not a basis to vacate an agreement in a dissolution proceeding.”

The lessons are fair disclosure, time to think, and each spouse’s own lawyer.

How Does Florida Judge a Postmarital Agreement at Death?

A postmarital agreement that waives surviving-spouse rights at death is judged under Florida’s probate statute, and that statute is stricter than the divorce standard for one reason.

Florida law says, “Each spouse shall make a fair disclosure to the other of that spouse’s estate if the agreement, contract, or waiver is executed after marriage.” No disclosure is required for a waiver signed before marriage. The difference matters.

A prenup signed before the wedding with no disclosure can still be enforced at a death. The Florida Supreme Court held that “nondisclosure in any form cannot invalidate an antenuptial agreement in probate proceedings of a deceased spouse.” The Court said, “Nondisclosure, whether fraudulent or not, is precisely what the legislature intended to eliminate from consideration on the validity of antenuptial agreements.”

A postnup signed after the wedding without fair disclosure can fail at death. In one case the Fourth District Court of Appeal held that a postnup signed without fair disclosure failed, and the couple’s earlier prenup revived and controlled.

The death-side waiver also needs two subscribing witnesses who sign as witnesses. A notary alone is not enough, and the other spouse cannot serve as a witness. The firm adds a notary so the agreement can be recorded with a homestead deed and the signature is never in issue.

Does a Postmarital Agreement Survive a Separation and Reconciliation?

A postmarital agreement signed while the marriage is intact is built to survive a later separation, a reconciliation and even a second filing for divorce.

In Stephanos the couple married in 1977. In 1996, while living together and not contemplating divorce, they signed a postnuptial agreement her family wanted. The couple separated in 2003 and filed for divorce. Seven months later they reconciled. The divorce finally went forward in 2013. Three trial judges heard different phases of the case. In 2020 the Fourth District Court of Appeal ruled that the whole agreement was enforceable. “Because Cox does not apply, the entire 1996 Agreement is enforceable and should be applied in distributing the parties’ assets and liabilities.”

The court held that the reconciliation rule from an earlier case did not apply because this agreement was signed in an intact marriage, not as part of a divorce settlement.

The lesson is that an agreement made when the marriage is strong can outlast years of separation and reconciliation. The Fourth District enforced a 1996 agreement in a divorce that concluded in 2020.

What Can a Postmarital Agreement Include in Florida?

A postmarital agreement can settle most of the financial questions a divorce or a death would otherwise open. The agreement may define which assets are separate and which are marital, how separate property is traced if funds are mixed, and how growth or income during the marriage is treated. The agreement may waive every form of alimony that Florida allows (bridge-the-gap, rehabilitative, durational, lump sum) and agree that neither spouse will seek court modification later. The agreement may waive the 30 percent elective share, the intestate share, the pretermitted spouse claim, the homestead descent and devise protections, the family allowance and the exempt property set-aside.

The agreement cannot decide anything about children. A Florida court sets child support, parental responsibility and time-sharing by the child’s best interests at the time, and no contract between the parents can override that. If a waiver of support would leave one spouse eligible for public assistance at the end of the marriage, the court may order enough support to prevent that result regardless of what the agreement says.

The couple may choose which state’s law governs the agreement. Florida courts enforce the chosen law unless applying it would violate a strong Florida public policy.

Why Do People Sign a Postmarital Agreement?

The reasons people sign a postmarital agreement fall into a handful of patterns. One spouse inherits property or receives a gift and wants to confirm that it stays separate, with growth and income following. A parent gives one spouse a home or a share in a family business, and the family wants documentation that it will not leave the bloodline at a divorce. One spouse leaves the workforce to raise children, and both want a record of what that sacrifice is worth if the marriage ends.

Some couples reach a postmarital agreement after a rough patch. A separation exposed the questions the couple had never answered, and a written agreement settles them before a reconciliation. The Fourth District enforced one such agreement signed in 1996 when the couple finally divorced years later.

Other couples never finished the prenup. The wedding day came before the lawyers did, and the postnup completes what the engagement started. The postnup costs more because the disclosure rules are stricter, but it does the same work.

The reason the couple gives goes into the agreement’s recitals and matters if the agreement is ever challenged.

Does a Postnup Override a Will in Florida?

A postnuptial agreement can change what a surviving spouse receives at death, but it works with the estate documents, not around them. The Fourth District Court of Appeal held in 2011 that a 2007 postnup with an “all rights” waiver renounced the wife’s gifts under the husband’s 2002 will, even though the spouses never separated and never filed for divorce. “Accordingly, as Jeffrey’s 2002 will was executed before the parties’ 2007 Post-Nuptial Agreement, the Post-Nuptial Agreement waived any benefits that would have passed to Andrea under the 2002 will.”

The agreement is the first document, not the only one. The firm redoes the will, the trust, the deed and the beneficiary forms on the same day the postnup is signed. A life insurance policy, a retirement account or a pay-on-death bank account pays the person named on the beneficiary form, and that form must match what the agreement promises.

Under federal law a waiver of survivor rights in a workplace retirement plan such as a 401(k) or pension must be signed by a spouse after the wedding, on the plan’s own form. A postnup creates the promise, but the plan’s spousal consent form is what the plan administrator follows.

Does a Postnup Need to Be Notarized in Florida?

Florida law requires the agreement to be in writing and signed by both spouses. For any waiver of rights that take effect at death, including the elective share and homestead, the statute requires two subscribing witnesses who sign as witnesses. One spouse cannot serve as a witness for the other. A notary alone does not satisfy the two-witness rule, and the Fourth District noted in a 2021 case 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.”

The statute does not require a notary, but the firm adds one so the agreement can be recorded with a deed and so the signature is never in dispute. Florida online notarization allows a person to appear before a Florida online notary by audio-video technology, and the agreement can be signed from home. When a waiver of spousal rights is signed with remote witnesses, the notary service asks questions about decision-making ability under Florida’s remote witnessing statute.

Each side prepares a disclosure exhibit listing income, assets, debts and estate, with values as of a recent date. The disclosure and a signed waiver of any further disclosure defeat the unconscionability defense.

Can a Postnup Be Changed or Revoked?

After marriage, a postnuptial agreement may be amended or revoked only by a written agreement signed by both spouses. At this firm, a change or revocation is signed with the same formalities as the original, including two subscribing witnesses and a notary, so it can do the same work on the death side.

The Fourth District Court of Appeal held in 2019 that one spouse’s later trust, signed by that spouse alone, could not loosen the prenup’s elective-share waiver. Under contract law and the firm’s practice, the same result applies to a postnup. Neither spouse can undo the agreement without the other’s signature.

A pending lawsuit in Miami-Dade County shows what can go wrong. According to the complaint filed October 23, 2026, a couple signed a prenup in 2018 and a purported revocation in 2020. The complaint alleges that the husband, then in his eighties, signed the revocation without independent counsel, without a capacity assessment, and initially without the two witnesses his agreement required. The husband died in 2021. On August 12, 2026 the probate court struck the widow’s elective share election as untimely without deciding whether the revocation was valid. The malpractice case remains pending and nothing has been decided on the merits. The lesson is that a revocation is itself a marital agreement and needs at least the formalities the waiver it undoes required.

How Much Does a Postmarital Agreement Cost in Florida?

The firm drafts a postmarital agreement for one spouse at a flat fee from $2,950. The fee is higher than the prenup fee because Florida requires fair financial disclosure before a waiver of rights at death signed after the wedding is valid, so the disclosure work is heavier. The fee covers the first draft, up to two rounds of revisions with the other spouse’s lawyer, the disclosure schedules, and a signing with two witnesses and a notary.

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.

After the postnup is signed, the firm updates the will, the trust, the deed and beneficiary forms the same day so the estate documents match the agreement. A challenge to an existing agreement, an elective share proceeding and any divorce litigation are quoted per matter.

The consultation is free and by phone (Zoom or WhatsApp on request). The firm’s postnuptial agreement page explains the full process.

Frequently Asked Questions

Common Situations

A wife inherited her mother’s house three years into the marriage and wanted it kept separate from marital property. The disclosure exhibit listed every account and asset each spouse owned, and the agreement stated that the house and any appreciation on it remained her separate property. The husband signed with his own lawyer. When they later divorced, the house was not divided.

A couple separated after eight years of marriage and reconciled four months later. Before moving back in together, each spouse hired a lawyer. Both spouses exchanged disclosure schedules, signed a postnuptial agreement with two witnesses and a notary, and had their wills redone the same week. The agreement settled property and support so that if they ever separated again, the questions would already be answered.

Sources of Law

• Waiver of spousal rights at death: Fla. Stat. §732.702 (2026) (a written waiver signed before two subscribing witnesses; fair disclosure required only when the waiver is signed after marriage; "all rights" language waives the elective share, intestate share, pretermitted share, homestead, exempt property, family allowance and preference as personal representative).
• Postnuptial agreements are judged under Casto, not under §61.079, which reaches only agreements signed in contemplation of marriage; the death-side waiver in a postnup needs fair disclosure under §732.702(2).
• Elective share: Fla. Stat. §732.201, §732.2065 (30 percent of the elective estate) and §732.2135 (2026) (the election is filed within 6 months after service of the notice of administration and within 2 years after death; an extension must be requested before the time expires); §733.212(8) (a waiver of service of the notice of administration counts as service on the date the waiver is filed).
• Homestead: Fla. Const. art. X, §4(c); Fla. Stat. §732.401 and §732.4015 (2026) (descent of homestead and the devise restriction when a spouse or minor child survives); §732.7025 (the deed waiver).
• Divorce side: Fla. Stat. §61.075 (2026) (equitable distribution; marital and nonmarital assets, enhancement of nonmarital assets by marital labor or funds) and §61.08 (alimony).
• The pending Miami-Dade lawsuit over a lapsed elective share is described from the complaint filed October 23, 2026 and the probate order of August 12, 2026 as allegations only; no party, lawyer or judge is named on this site and nothing has been decided on the merits.
• Cases, each read in full from the opinion files under reference/caselaw/: Casto v. Casto, 508 So. 2d 330 (Fla. 1987); Stregack v. Moldofsky, 474 So. 2d 206 (Fla. 1985); Steffens v. Evans, 70 So. 3d 758 (Fla. 4th DCA 2011); Stephanos v. Stephanos, 299 So. 3d 37 (Fla. 4th DCA 2020); Kearney v. Kearney, 129 So. 3d 381 (Fla. 1st DCA 2013); Williams-Paris v. Joseph, No. 4D20-1760 (Fla. 4th DCA Nov. 17, 2021).
• Fees: the firm's posted fee schedule, posted October 6, 2026 and honored 90 days from posting; government costs are additional and passed through at cost. Secure Will Estate Plan and lady bird deed fees on the pricing page.
Statute text compared with the 2026 Florida Statutes on 2026-11-11.

Related Guides

Florida Postnuptial Agreement Attorney, Florida Postnuptial Agreement: What It Settles, Prenup vs Postnup: Which One Do You Need?, Can You Get a Prenup After Marriage? The Postnup Option, My Spouse Wants a Postnup: What to Know First, Does a Prenup Apply at Death in Florida? Yes, Elective Share: 30% a Spouse Can Claim, Florida Attorney, Does a Prenup Replace a Will in Florida? No.

What I Have Seen With Postmarital Agreements

In 14 years of law practice, I have seen postnuptial agreements tested in divorces that came five years, fifteen years and twenty years after the signing. I also litigate these agreements after they fail, which enhances the practice of drafting them.

I have a few take-home points.

The first is the disclosure schedule. A postnup signed after the wedding is held to a higher standard than a prenup because spouses owe each other a fiduciary duty. Florida law requires fair disclosure when the agreement is signed after marriage. In Kearney, the First District Court of Appeal in 2013 set aside a postnup where the husband understated his income and omitted about $6.5 million in receivables. The court wrote, “postnuptial agreements governing disposition of the parties’ assets are not enforceable if entered into in the absence of full and fair disclosure of the assets at issue.” The wife gave up her interest in a company later valued at about $48 million for $3 million in installments. The disclosure decides whether the waiver stands.

The second is the documents that follow. The postnup is the first document, not the only one. The will, the trust, the deed and the beneficiary forms are redone the same day so the estate plan matches the agreement.

Avoid signing a postnup without a lawyer who reviewed the disclosure the other side gave you.

One honest limit is that a court can still refuse to enforce an agreement that leaves one spouse on public assistance, no matter what the parties signed.

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

Updated on November 12, 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.