Which Law Governs a Prenup for a Canadian Couple in Florida?

Canadian couples come to a Florida prenup in two ways. Some marry here, often on a winter trip, while their legal home stays in a province. Others are moving to Florida for good, sometimes with a marriage contract they signed in Canada years ago. Couples in the second group should also read whether a prenup signed elsewhere is valid in Florida. Both groups face the same question, which is which set of rules divides their property if the marriage ends, and both answer it the same way, with a clause that chooses the law and a signing that both countries will respect. The general Florida rules are on the Florida prenup guide.

How Provincial Law and Florida Law Divide Property

Family property in Canada is governed by provincial law, and the provinces differ from each other as well as from Florida. Two examples show how far apart the systems can be.

1. Ontario. On divorce or separation, Ontario’s Family Law Act gives the spouse whose net family property is smaller one-half of the difference between the two, a calculation called equalization. A marriage contract can change that, but Ontario makes unenforceable any term of a marriage contract that tries to limit a spouse’s rights in the matrimonial home under the Act’s matrimonial home provisions.
2. Quebec. As a 2022 Florida decision describes Quebec’s Civil Code, a couple can adopt a regime of separation as to property by a simple declaration in a marriage contract, and under that regime each spouse keeps the administration, enjoyment and free disposal of his or her own property. Quebec also has family patrimony rules, and the same Florida decision quotes the Quebec article that ties the effects of marriage to the law of the spouses’ domicile.

Florida takes a third approach. A Florida court first sets aside each spouse’s separate property, then divides the marital property starting from the premise that the split should be equal. Florida treats as marital the growth in a separate asset that comes from either spouse’s work during the marriage or from marital money spent on it, and a prenup can change all of that.

Kevin advises on Florida law. A lawyer licensed in your province advises on the provincial side, including British Columbia, Alberta and every other province with its own statute, and the two lawyers make sure the agreement works under both.

Choosing the Law in the Prenup

The question I get most from Canadian couples is, “Which law decides our property, the province’s or Florida’s?” The answer is the law your agreement chooses, if it chooses one. Florida lets a couple choose in the prenup the law that governs how it is read, and Florida courts generally enforce that choice. Canada is a foreign country for this purpose, so a Florida statute applies too. A Florida court in a divorce will not enforce a choice of foreign law that contravenes Florida’s strong public policy or is unjust or unreasonable, and no agreement can reduce a child’s right to support.

The chosen law can cut against the spouse who chose it. In 1994 a Florida appeals court applied the Illinois law a couple had chosen in their prenup and, under that law, refused to enforce the wife’s total waiver of alimony. A couple who chooses provincial law takes provincial law as a whole, including any part of it that limits what a marriage contract can do.

Ontario has a rule of its own on this. Ontario’s statute says that the property rights of spouses arising from the marriage are governed by the law of the place where both spouses had their last common habitual residence. For a couple who lives in Toronto and winters in Naples, that is usually Ontario. How a contract’s choice of Florida law works alongside that rule is a question for Ontario counsel, and the answer shapes which law the prenup should choose.

Practice pointer. Choose the law of the place where a divorce is most likely to be filed, and say in the same sentence that the choice covers both divorce and death. A clause that picks Florida law for a couple whose legal home stays in a province can leave a Canadian judge applying a law the couple never expected.

Where Would a Snowbird Couple Divorce?

Florida requires one spouse to have lived in Florida for 6 months before filing for divorce. Many Canadian snowbirds deliberately keep their Florida stay short, because of the border rules and the U.S. tax residency tests, and their legal home stays in Canada. Canadian snowbirds in Florida and how long a Canadian can stay in the US explain those day counts.

For a couple like that, a divorce would usually be filed in their province, and a Canadian court would decide whether to enforce a prenup signed in Florida. The agreement therefore has to be written for a Canadian courtroom as well as a Florida one. A couple who moves to Florida permanently is in the opposite position, and for them a Florida divorce, Florida law and a declaration of Florida domicile usually go together.

Signing It So Both Systems Accept It

Ontario’s statute says a domestic contract, which includes a marriage contract, is “unenforceable unless made in writing, signed by the parties and witnessed.” Florida requires a prenup to be in writing and signed by both parties, and requires two subscribing witnesses for any waiver of a spouse’s rights at death signed by a Florida resident. We sign every prenup with two witnesses and a notary, with each person’s financial disclosure attached and initialed, so the same signing meets the Ontario rule and the Florida rule.

Each spouse should also have independent legal advice. Florida does not require it, and an agreement each spouse signed with a lawyer of their own is much harder to attack later. Kevin represents one spouse on the Florida side, and the other spouse retains separate counsel.

The Florida Condo, the Will and the Waiver

A Florida surviving spouse can claim 30 percent of the elective estate whatever the will says, along with homestead rights. A prenup can waive those rights, and Florida’s probate code has a rule that helps Canadian couples. A waiver signed by a nonresident of Florida is valid in Florida if it was valid where it was signed, even if the spouse later dies a Florida resident. The two-witness requirement applies only to waivers signed by Florida residents.

The rule does not help a contract that never mentions death. Many Canadian marriage contracts were written for a separation and say nothing about what happens when a spouse dies, and a contract that does not waive the rights at death leaves them in place. Whether a prenup applies at death explains the waiver in detail.

The Florida property itself carries its own rules for Canadian owners. Canadians buying property in Florida covers how to hold title, US estate tax for Canadians covers the treaty credit and the marital credit for property passing to a spouse, and the prenup should agree with whichever title and will the couple uses.

What It Costs

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. Reviewing a prenup or a Canadian marriage contract the other side drafted is a flat fee from $750, and a postnup for a couple already married is a flat fee from $2,950.

Posted fees are honored for 90 days from the posted date (October 6, 2026). Canadian counsel’s fees and government costs are separate, and government costs are passed through at cost. A challenge to an existing agreement and any divorce litigation are quoted per matter and never carry a flat fee.

Frequently Asked Questions

Common Situations

The winter wedding. An Ontario couple marries in Sarasota during their winter stay and will keep their home in Ottawa. The prenup chooses Ontario law, is signed with two witnesses and a notary, and is reviewed by Ontario counsel before the wedding. The Florida condo is addressed in both the prenup and the deed.

The move south. A couple signed a marriage contract in Quebec twenty years ago and has now moved to Florida for good. The contract covers property and says nothing about death. A postnup with full disclosure adds the waiver of rights at death, signed in front of two witnesses now that they are Florida residents.

One Canadian, one American. A Canadian widow marries a Florida resident she met wintering in Naples. Her house in British Columbia, her registered savings and her Florida condo all go on her disclosure schedule, and a British Columbia lawyer advises her on the provincial side while Kevin drafts the Florida agreement for one of them.

Sources of Law

• Florida: Fla. Stat. §61.079(3), (4)(a)7 (choice of law), (4)(b); §61.0401(2)(a), (4) (choice of a foreign country’s law not enforced if it contravenes strong public policy or is unjust or unreasonable); §61.075(1) (court “must begin with the premise that the distribution should be equal”) and (6)(a)1.b (enhancement of nonmarital assets); §61.021 (6 months’ residence before filing); §732.702(1) (waiver by a nonresident valid in Florida if valid where executed; witness requirement applies to Florida residents); §732.2065 (elective share of 30 percent). (2026 statutes, read 2026-10-06.)
• Ontario: Family Law Act, R.S.O. 1990, c. F.3, s. 5(1) (equalization of net family properties), s. 15 (law of the last common habitual residence), s. 51 (“domestic contract” includes a marriage contract), s. 52(2) (marriage contract may not limit rights under Part II, Matrimonial Home), s. 55(1) (domestic contract unenforceable unless in writing, signed by the parties and witnessed). ontario.ca e-Laws, consolidation from May 1, 2026, read 2026-10-06. Persuasive only in a Florida court; advice on Ontario law comes from Ontario counsel.
• Quebec: Civil Code of Quebec, arts. 485, 486 and 3089, as quoted in Moquin v. Bergeron, No. 4D21-27 (Fla. 4th DCA May 11, 2022). Not independently read here.
• Cases: Moquin v. Bergeron, No. 4D21-27 (Fla. 4th DCA May 11, 2022) (1992 Quebec marriage contract adopting separation as to property enforced; proceeds of two Florida homes awarded to the husband as separate property; conditional alimony and fees left for remand); Kolflat v. Kolflat, 636 So. 2d 87 (Fla. 2d DCA 1994) (Illinois law chosen in the agreement applied; total alimony waiver not enforced). Opinions read in full from the local CourtListener corpus. (retrieved 2026-10-06)

What a 1992 Quebec Marriage Contract Did in Palm Beach County

Florida authority on this question is thinner than people assume, and I have read all of it. Cases with this shape keep coming up, and it is usually a contract signed in another country decades before anyone imagined a Florida divorce.

A couple signed a marriage contract in Quebec on July 17, 1992, eight days before their wedding there. The contract was in French and had two articles. The first adopted the separate property regime of the Quebec Civil Code, and the second said each spouse would cover the household expenses in proportion to their means. The spouses kept separate accounts for the whole marriage, and at one point the husband borrowed $170,000 from his wife. Around 2009 they and their daughter became permanent Florida residents. The husband bought a home in Ocean Ridge with his own money, and later two adjoining condominiums in Palm Beach Gardens titled to his trust, and she put no money into either.

In 2019 she filed for divorce in Palm Beach County. Both sides agreed the contract was valid, and both sides brought Quebec law experts. The trial judge reasoned that Quebec’s own rule pointed to the law of the spouses’ domicile, decided that Florida’s equitable distribution law was the closest match, and divided the proceeds of both homes under it. In 2022 the Fourth District reversed. The contract chose Quebec’s separate property regime, nothing about it offended Florida public policy, and the court directed that the proceeds of both homes go to the husband as his separate property. The court left the wife’s claim to alimony and fees open, after a 26-year marriage in which the trial judge had found she had an annual shortfall of $45,252.

In reading that opinion with a Canadian couple in mind, I have a few take-home points.

The first is that a short contract signed in another country can still control a Florida divorce decades later. Two articles in French decided the fate of two Florida homes. Practice pointer. Bring any marriage contract you signed in Canada to the first meeting, because it may already govern your property here, for better or worse.

The second is that the contract decided only what it addressed. The contract chose a property regime and said nothing about support, and so the wife’s alimony claim survived the husband’s win on the homes. Practice pointer. If a couple wants support decided too, the agreement has to address support in words, and a Canadian contract that only picks a property regime should be supplemented with a Florida prenup or postnup.

Avoid leaving a Florida judge to work out what your provincial law would have done after a move. The couple’s contract chose a Quebec regime without saying what would happen if they left Quebec, and it took experts on both sides and an appeal to settle the point. A sentence stating that the chosen law applies wherever the couple lives would have answered it at the start.

An honest limit belongs here. The decision rested partly on the parties’ own agreement about how Quebec law applied to spouses no longer living in Quebec, and a different stipulation or a different province could change the analysis. Canadian counsel answers that part, and I make sure the Florida agreement agrees with it.

Kevin D. Klagge, Esq., admitted in Florida since 2012. The case described above is a published decision of a Florida court in other parties’ matter, not a matter this firm handled, and past results do not guarantee a similar outcome.

Updated on October 6, 2026. Reviewed by Kevin D. Klagge, Esq., Fla. Bar No. 99502. General information about Florida law, not legal advice on Canadian or provincial law, and no attorney-client relationship is created. Provincial law questions belong to a lawyer licensed in your province. Do not send confidential information until we have agreed to represent you.