Does a Prenup Replace a Will in Florida?

1. Does a Prenup Replace a Will?

A common question I hear before a wedding is, “Does the prenup take care of who gets what when one of us dies?” The answer is no. A prenup and a will do two different jobs, and an estate plan needs both of them done.

A prenup records what each spouse gives up and what each spouse is promised. Florida lets a couple use it to waive the rights a widow or widower would otherwise have (the 30 percent elective share, homestead, the intestate share and the rest) and to decide how property is divided at death. A waiver stops a claim. A waiver does not transfer anything.

A will or a trust is the document that actually leaves property to someone. A person who signs a prenup and never signs a will dies intestate (without a will), and Florida’s intestacy rules pick the heirs. If the spouse waived the intestate share, the estate goes to the descendants, or to parents and then siblings if there are no descendants. A spouse the owner meant to provide for receives nothing, and a stepchild the owner raised usually receives nothing either, because Florida’s intestacy order reaches a stepchild only when no blood relative at all survives.

The list of rights a prenup can waive, and the broad wording that waives all of them at once, is on does a prenup apply at death. The rest of this page is about the second document.

2. What Happens When the Will Is Never Updated

Getting married does not revoke a Florida will. The will you signed at 50, leaving everything to your two children, is still your will at 70 after a second marriage. Florida protects the new spouse anyway through the pretermitted spouse rule (pretermitted means left out because the will came first).

Under that rule, a spouse who married you after the will was signed receives the share they would have taken if you had died without a will. Where you have children from an earlier marriage, that share is one-half of the probate estate. On a $1,000,000 estate the children named in the will lose $500,000 to a spouse the will never mentions.

Florida names three exceptions. The rule does not apply if the will provides for the spouse, if the will shows an intention to leave the spouse out, or if a prenuptial or postnuptial agreement provided for or waived the spouse’s share. The third exception is the one a prenup supplies. An agreement that waives all rights in the other spouse’s estate covers the pretermitted share, and an agreement that only addresses divorce may not.

Relying on the exception still leaves room for a dispute. The pretermitted share is one claim among several, and a will signed after the wedding that names the spouse, or says plainly that the spouse is provided for by the prenup, closes the question without anyone having to read the agreement in court. See pretermitted spouses and children for how the share is calculated.

3. Promised Death Benefits Need a Will, Trust or Insurance

Many prenups promise the survivor something. Common examples are a sum of money such as $250,000, the right to live in the house for life, or a life insurance policy of $500,000 for the survivor. Florida law lets the agreement make those promises, and it lets the agreement require a will or trust to carry them out.

A promise in a prenup is a contract right. If the spouse who made it dies without a will or trust that delivers the money, the survivor has a claim against the estate and has to pursue it in the probate case against the very children the estate is passing to. A promise of the right to live in the house is harder still, because a probate court has to decide what the words meant.

The fix is to sign the delivering documents with the prenup.

• A sum of money goes in the will or the trust as a specific gift, in the same dollar amount the prenup states.
• The right to live in the house goes in the trust or deed, with who pays the taxes, insurance and repairs written down, because those are the fights that follow.
• A life insurance promise is carried out on the insurer’s beneficiary form. The insurer pays the person named on the form, whatever the prenup says, so the form has to match the agreement and stay matched.

4. A Promise to Make a Will Needs Two Witnesses

Florida enforces a promise to make a will, to leave a gift, or not to revoke a will only if the promise is in writing and signed in the presence of two attesting witnesses. A prenup that says “each spouse will leave the other $250,000 by will” is that kind of promise.

The same two-witness formality applies to the waiver of death rights. A Florida resident who waives the elective share or homestead has to sign the waiver in front of two subscribing witnesses. A prenup signed with a notary stamp and nobody else watching can therefore work in a divorce and fail at death on both halves, the waiver and the promise.

The signing is the cheapest part of the whole agreement to get right. Two adult witnesses who are not the other spouse sign in the room, and a notary acknowledges the signatures. See how to get a prenup in Florida for the rest of the signing.

5. The “Later Will Controls” Clause

Some form prenups include a sentence saying that if the agreement and a will signed later conflict, the will controls. The sentence reads like housekeeping. For one of the two spouses it can undo the agreement.

Florida law says a prenup can be amended after the wedding only by a written agreement signed by both spouses. A “later will controls” clause lets one spouse change the deal alone, by signing a will the other spouse never sees. If the prenup promised you $250,000 and your spouse later signs a will leaving you $25,000, the clause gives the later will the last word.

The clause can be the right choice for the spouse who wants flexibility, such as an owner who expects to provide more than the agreement requires and wants room to do it. The clause is the wrong choice for the spouse who gave up rights in exchange for a promise. A lawyer reviewing the agreement for the spouse receiving a death benefit will usually ask to strike or narrow this sentence, so that a later will can increase the benefit and never reduce it. See prenup review before you sign.

6. What Your Will Should Say After a Prenup

A will signed after a prenup should be read side by side with the agreement, clause by clause. I check four things.

1. The order. The will is signed after the prenup. A broad waiver renounces gifts to the spouse in any will signed before the agreement, so an older will can leave the spouse nothing even where the owner wanted otherwise.
2. The gift is named in dollars or property. If the spouse is to receive something, the will or trust says how much or which asset. A will that points back to a right the prenup waived, such as “my spouse’s elective share,” invites the dispute told at the bottom of this page.
3. The house. A Florida homestead cannot be left away from a spouse unless the spouse validly waived homestead rights, and never while a minor child survives. The will or trust disposes of the home in a way the waiver allows. See the spousal waiver of homestead.
4. The beneficiary forms. Retirement accounts and life insurance pass by form, and the will cannot reach them. A 401(k) also carries federal spousal rights that a prenup cannot waive, which is covered on prenups and retirement accounts.

For a second marriage with children on both sides, a trust is often the better delivering document, because it can hold the house or a fund for the surviving spouse’s life and then pass to the first spouse’s children. See second-marriage prenups and the Florida elective share.

What It Costs

A prenup drafted for one spouse is a flat fee from $2,450. A review of an agreement the other side drafted is a flat fee from $750, and a postnup is a flat fee from $2,950. What each prenup fee includes is set out on the prenup page.

The will or trust that carries the agreement out is posted separately. The will plan is a flat fee from $1,200 for one person and $1,950 for a couple, and the trust plan is a flat fee from $3,200 for one person and $4,500 for a couple. Posted fees are honored for at least 90 days from September 2026. Government costs such as recording and filing fees are additional and passed through at cost.

Frequently Asked Questions

Common Situations

The will from the first marriage. A widower signed a will in 2012 leaving everything to his three children and married again in 2023 with no prenup. The widower never changed the will. At his death his second wife can claim the share she would have taken without a will, one-half of the probate estate, because nothing waived it and the will never mentions her.

The promise that lived only in the prenup. A couple’s prenup says the wife will receive $300,000 if the husband dies first. The husband never signs a new will, and his old will leaves everything to his son. The wife holds a contract claim instead of an inheritance, and she has to bring it against her stepson in the probate case.

The agreement signed at the notary’s desk. A couple signed their prenup at a bank in front of a notary, with no witnesses. The divorce terms may hold. The waiver of the elective share and the husband’s promise to leave his wife the condominium by will are both open to attack at his death, because Florida requires two witnesses for each.

Sources of Law

• Fla. Stat. §732.301 (pretermitted spouse takes an intestate share unless provision has been made for, or waived by, the spouse by prenuptial or postnuptial agreement; the spouse is provided for in the will; or the will discloses an intention not to provide for the spouse); §732.507(1) (subsequent marriage does not revoke a prior will); §732.102 (spouse’s intestate share, one-half where the decedent or the spouse has descendants outside the marriage); §732.103 (other heirs); §733.805 (source of the pretermitted share).
• Fla. Stat. §732.701(1) (no agreement to make a will, to give a devise, or not to revoke a will or devise is binding unless in writing and signed by the agreeing party in the presence of two attesting witnesses; nonresident agreements valid if valid where executed).
• Fla. Stat. §732.702(1) (waiver of the elective share, intestate share, pretermitted share, homestead, exempt property and family allowance by a writing signed by the waiving party in the presence of two subscribing witnesses; a waiver of “all rights,” or equivalent language, renounces benefits under any will executed before the waiver); §732.2065 (elective share of 30 percent); Fla. Const. art. X, §4(c).
• Fla. Stat. §61.079(4)(a)3., 5. and 6. (a premarital agreement may govern the disposition of property at death, the making of a will, trust or other arrangement to carry out the agreement, and the disposition of a life insurance death benefit); §61.079(6) (after marriage, amendment, revocation or abandonment only by a written agreement signed by the parties); §61.079(10) (the Act does not alter §§732.701 and 732.702).
• Wilson v. Wilson, No. 4D18-3691 (Fla. 4th DCA Aug. 14, 2019) (prenuptial waiver of the elective share enforced; the husband’s later trust, signed only by him, directing the trustee to set aside enough property to satisfy the wife’s elective share could not modify the agreement, which required both signatures, and §61.079(6) requires the same; the agreement permitted testamentary gifts by will or codicil, which the husband did not make). Opinion read in full; no reporter citation located, so the docket number is given. Steffens v. Evans, 70 So. 3d 758 (Fla. 4th DCA 2011) (a postnuptial “all rights” waiver renounced the wife’s gifts under the husband’s earlier will).
• Statutes and opinions retrieved October 6, 2026.

The Will That Gave the Wife a Right She Had Already Given Up

A sentence I now check for in every will that follows a prenup comes from a Florida appeals decision in 2019.

A couple in Indian River County married in 2011 after signing a prenup. Each gave up the elective share and every other right in the other’s estate, and the agreement said either one could still leave the other a gift by will. Any change to the agreement needed both signatures.

Two years into the marriage the husband signed a new will and a trust, and he amended the trust in 2014. The husband plainly meant to provide for his wife (perhaps he thought the elective share was a tidy formula for a fair amount). The trust told the trustee to set aside “as much property as is necessary to satisfy the Wife’s elective share” if she chose to take it. The husband died in 2017. His wife filed her election, and his son, serving as trustee, moved to strike it.

The son won, and the appeals court affirmed. The trust was signed only by the husband, so it could not change a prenup that required both signatures, and Florida law says the same about any amendment after the wedding. The elective share she had waived stayed waived. The court added that if he wanted to leave her something, he could have done it by will without relying on the elective share at all.

I have a few take-home points.

The first is the wording. My reading of that case is that the husband did the generous thing and used the wrong words. Nobody in that family was trying to cut the wife out. The trust pointed to a right the prenup had already taken away, and the prenup controlled.

The second is that the son, as trustee, was in the position of enforcing his father’s prenup against his father’s widow. A gift stated in dollars would have spared the whole family that lawsuit.

Practice pointer. When a will or trust follows a prenup, name the survivor’s gift as a dollar amount, a fraction of the trust or a specific asset. Never describe the gift as the elective share or any other right the agreement waived.

Avoid assuming a later document loosens the prenup. A change to the agreement takes a writing signed by both spouses.

An honest limit belongs here. The opinion does not say how large the estate was or what the elective share would have been worth, so nobody outside the family knows what the wording cost.

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 6, 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.