Florida Prenuptial Agreements

What a Prenup Decides

A Florida prenuptial agreement lets the two of you set the rules in advance, instead of inheriting the default ones. Under Florida law (the Uniform Premarital Agreement Act), you can decide the following.

• What’s separate and what’s marital. Keep a business, a property, or premarital savings clearly yours.
• How debts are handled, so you are not answerable for your spouse’s.
• Whether either of you can claim alimony, and how much.
• What happens at death, including waiving or shaping your spouse’s claim on your estate (see below).

What a prenup cannot do is predetermine child support or custody. Florida decides those later, by the child’s best interests, no matter what the agreement says.

The Estate-Planning Side Most Couples Miss

Here is the piece a divorce-only mindset overlooks. In Florida, a surviving spouse can claim roughly 30% of your estate (the elective share), plus homestead and other rights, regardless of what your will says, unless those rights were waived in a valid agreement. A prenup (or postnup) is how you waive or shape them. That matters most in a second marriage, where you want to provide for your spouse and still leave the bulk to your children from a prior relationship. We coordinate the agreement with your will or trust and beneficiary designations so they do not contradict each other.

Two formalities decide whether that waiver actually works, and both come from the probate code rather than from the premarital statute. Florida lets a spouse give up the elective share, the intestate and pretermitted shares, homestead, exempt property, the family allowance and even preference to serve as personal representative, either before or after the marriage, by a written agreement signed by the waiving party in the presence of two subscribing witnesses. The premarital act asks only for writing and two signatures, and it says in terms that it does not alter the formalities required for a spousal agreement under the probate code. One qualifier matters and it is easy to miss, because the witness requirement reaches instruments signed by Florida residents, so a couple who signed in another state before moving here is not caught by it. For anyone signing in Florida, an agreement that is flawless for divorce purposes can still be two witnesses short of delivering the estate result the couple wanted.

The disclosure rule splits the same way, and it runs opposite to what most couples assume. Florida requires each spouse to make a fair disclosure of their estate when the waiver is signed after the marriage, and requires no disclosure at all for one signed before it. Full disclosure is still how we draft either one, because the divorce side of the same agreement can be attacked as unconscionable where disclosure was missing, and because a waiver nobody understood is a waiver somebody will fight about.

Side by side, here is what changes, and what does not.

Who Really Needs One

• Second marriages and blended families, to protect children from a prior relationship.
• Business owners, so a divorce or death does not drag the company into a marital fight (this pairs with business succession planning).
• Anyone with an inheritance, separate property, or a big gap in assets or debts between the two of you.

Will It Hold Up?

A Florida prenup holds up when it is built right. The premarital act asks for a written agreement signed by both people, and then puts the burden on whoever attacks it later. A challenger has to prove one of three things. Either the agreement was not signed voluntarily, or it was the product of fraud, duress, coercion or overreaching, or it was unconscionable when signed and that person got no fair and reasonable disclosure, never waived disclosure in writing, and could not reasonably have known what the other person owned. That third route needs all four parts, which is why the agreements that fall are almost always the ones signed under pressure rather than the ones with hard terms.

Agreements get set aside when somebody was rushed into signing on the eve of the wedding, when assets were hidden, or when the terms are unconscionable. The cure is straightforward, with full disclosure, independent legal advice for each person, and signing well before the date. That is how we draft them.

Do We Each Need Our Own Lawyer?

Florida does not require it. Neither the premarital act nor the probate code makes independent counsel a condition of a valid agreement, and I still recommend it in every agreement that touches estate rights.

A common question I hear is, “Can one lawyer just write it for both of us?” One lawyer drafts the agreement, and that lawyer represents one of you. The other person should have their own review, and the reason sits in the list above. A challenger who wants the agreement gone has to prove it was not signed voluntarily, or that it came out of fraud, duress, coercion or overreaching. A separate lawyer on the other side of the table is the cheapest evidence available that neither of those happened.

Signing early does the same work for less money. An agreement signed months before the wedding is hard to describe as coerced, and one signed the night before the rehearsal dinner invites the argument.

Does It Travel to Other States?

Usually, yes. Florida follows the Uniform Premarital Agreement Act, which most states (around 28) have adopted, and we include a Florida choice-of-law clause, so a well-drafted agreement generally travels with you. The notable exception is Louisiana, a civil-law state with its own community-property rules. If your life or assets touch more than one state, we draft for portability and flag anything that needs local review.

What It Costs

The price depends on complexity, and a simple agreement costs far less than one involving a business, multiple properties, or a blended family. We quote a flat fee at your free consult, so you know the number before you commit. Government and recording costs, if any, are separate and passed through at cost.

Frequently Asked Questions

If the wedding has already happened, the instrument is a postnuptial agreement rather than a prenuptial one, and it reaches the same rights. The difference is that Florida requires fair disclosure of each estate for an agreement signed after the marriage and requires none for one signed before. Prenup versus postnup, side by side.

Sources of Law

• Fla. Stat. §61.079 (Florida Uniform Premarital Agreement Act). §61.079(3) (a premarital agreement must be in writing and signed by both parties, and is enforceable without consideration other than the marriage itself). §61.079(7)(a) (a premarital agreement is not enforceable in a family-law proceeding if the party resisting it proves the agreement was not executed voluntarily, or was the product of fraud, duress, coercion, or overreaching, or was unconscionable when executed and that party was not provided a fair and reasonable disclosure, did not voluntarily and expressly waive disclosure in writing, and did not have and could not reasonably have had adequate knowledge of the other party’s property or financial obligations); §61.079(7)(c) (unconscionability is decided by the court as a matter of law); §61.079(6) (after marriage, amendment or revocation only by a written agreement signed by the parties). §61.079(10) (the section “does not alter the construction, interpretation, or required formalities of, or the rights or obligations under, agreements between spouses under s. 732.701 or s. 732.702”).
• Spousal-rights waiver: Fla. Stat. §732.702(1) (the elective share, intestate share, pretermitted share, homestead, exempt property, family allowance, a community-property claim under §§732.216 to 732.228, and preference in appointment as personal representative of an intestate estate 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 witness requirement applying to instruments signed by Florida residents after the effective date of the law); §732.702(2) (fair disclosure of each spouse’s estate required where the instrument is executed after marriage, and “[n]o disclosure shall be required for an agreement, contract, or waiver executed before marriage”); §732.702(3) (no consideration beyond execution required). History includes s. 10, ch. 2024-238. Fla. Stat. §732.7025. Elective share: §§732.201 to 732.2155. Postnuptial agreements are governed by Florida contract law. (§61.079 and §732.702 text retrieved 2026-09-08; balance retrieved 2026-06-09.)

Related Guides

What a prenup costs in Florida · what a prenup covers · do I need a prenup? · second-marriage prenups · prenups for business owners · how to get a prenup · postnuptial agreements

What I Have Learned About Agreements That Hold

In 14 years of law practice, the prenuptial agreements that fail are almost never the ones somebody read carefully and signed anyway.

I have a few take-home points about the ones that hold.

The first is that a fight after a death is about the circumstances of signing rather than the words on the page. I have come across a case where a Florida man’s estate plan was rewritten twice during his marriage, and the detail that mattered to me was buried in the procedural history. He had gone to court for a restraining order against his wife, alleging she had made death threats. The wills she obtained left his fortune to her, and if she did not survive him, $150,000 to her daughter from an earlier marriage and the residue in trust for that daughter’s two sons. She was convicted of his murder, which meant Florida treated her as having died before him, and I would not have guessed the result that followed. Her daughter and grandsons became the sole beneficiaries of his estate, because the statute that disinherits a killer reaches only the killer. His cousins, named in an earlier will, spent six years in court to get the undue influence question back in front of a judge at all.

The second point I take from that case is about timing. An estate plan signed in the middle of a marriage carries no proof at all about the state of mind of the person who signed it. When I look at a prenuptial agreement instead, I can see that both people were represented, both had disclosed, and neither was yet living with the consequences. I would rather fix the estate terms at the one moment in the whole sequence when nobody can plausibly claim pressure.

Practice pointer. Count the witnesses on any agreement signed in Florida that waives estate rights. Florida’s premarital act asks only that a prenup be in writing and signed by both people, while the probate code separately requires the waiving spouse to sign in front of two subscribing witnesses, and the probate code is what governs the waiver. The requirement reaches Florida residents, so the agreement a couple signed in another state is judged differently from the one they sign after the move. That asymmetry is worked through for people who relocated here in what changes when you move to Florida with an existing estate plan, where the out-of-state prenup is usually defeated by its own silence rather than by a missing witness. I have read agreements that would have survived a divorce and would not have delivered the estate result the couple paid for.

Avoid signing in the last week before the wedding. A challenger who can show the agreement was not signed voluntarily, or that it came out of duress or overreaching, never has to say a word about whether the terms were fair, and a signature obtained days before a booked reception is the fact that argument gets built on.

An honest limit belongs here. A prenuptial agreement binds the person who signed it and does nothing to stop a later will or deed from being attacked on its own facts, so an agreement is one part of a plan rather than the whole of it. A postnuptial agreement is measured differently again, under contract law rather than the premarital statute, and Florida does require a fair disclosure of each estate for a waiver signed after the marriage. What I tell people is that nothing on paper stops someone determined to do harm, and the case above is the proof of it.

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

Updated on September 8, 2026. Reviewed by Kevin D. Klagge, Esq., Fla. Bar No. 99502. Attorney Kevin Klagge represents families, businesses, and international clients in estate and tax planning, business structuring, and international law, with a focus on Florida legal tools. He litigates estate and business issues in court. 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.