Prenup Agreement for a House in Florida: What It Has to Say

Does a Prenup Keep the House I Owned Before the Marriage Separate?

A house owned before the wedding starts as a nonmarital asset in a Florida divorce, and a prenup can keep it that way. Two statutory rules then work against a house that was paid for or improved during the marriage, and a prenup that says only “my house stays mine” does not turn them off.

The first rule counts growth caused by effort or money. The property-division statute makes marital any increase in the value of a separate asset that results from either spouse’s efforts or from marital funds. In Herrera an emergency-room doctor’s premarital home gained $100,000 in value after $90,000 of marital funds paid off its mortgage and a den was added. The court counted the $100,000 as marital and divided it equally between the spouses, and it reversed an award that gave the wife exclusive use of the house itself, because a separate asset cannot be handed to the other spouse as part of the division without an agreement.

The second rule is a formula for the mortgage. When the mortgage on a separate home is paid down from marital funds, the marital portion is the principal paid from marital funds plus a share of the home’s passive growth, and the share is the principal paid divided by the home’s value on the wedding date. As an illustration with round numbers, suppose a house was worth $400,000 on the wedding date and $520,000 at the divorce, with no improvements and no other loans. If $120,000 of principal was paid from marital funds, the passive growth is $120,000, the fraction is $120,000 divided by $400,000, or 0.30, and the marital share of the growth is $36,000. The marital portion is $156,000, which is the $120,000 of principal plus the $36,000. A court applies the formula unless a spouse shows it would be inequitable, and the arithmetic changes with every improvement and every refinance.

Does the House Stay Mine if My Partner Pays Half the Mortgage?

A common question I hear is, “My partner pays half the mortgage on the house I bought first, so does the house still stay mine?” Without an agreement the answer is no, because the statute counts principal paid from marital funds as marital, and half the mortgage payment is marital money in most households. Florida also treats as nonmarital any asset that a valid written agreement excludes from the marital estate, and that sentence is what a prenup can use.

Wording decides how far the exclusion reaches. In Hahamovitch the Florida Supreme Court enforced a broad release that covered property in the husband’s name, including growth from marital work and money, after 22 years of marriage. In Doig a clause that barred any claim to separate property “if it increases in value during the marriage” was read to reach only passive growth, so growth from effort stayed in play. In Felice a one-page prenup that dealt only with a Marco Island house, and gave the husband “any and all equity and rights of ownership” in it, was read to cover the mortgage paydown and the growth as well, after a trial court had counted $197,226 of the house as marital. The three outcomes came from three sets of words.

A prenup about a house can make several choices, and each has to be written down. The agreement can classify the mortgage paydown, passive growth and growth from effort as separate, or give the paying spouse a fixed credit for each payment, or set each spouse’s share of the mortgage, taxes and insurance while both live there. The choice depends on what the couple considers fair, and the clause has to name the paydown and the growth in so many words.

What Happens to the House at My Death?

Florida’s constitution says a homestead cannot be left by will if the owner is survived by a spouse or a minor child, except that it may be left to the spouse when there is no minor child. When the home is not validly left, it descends by statute. If the owner leaves a spouse and descendants, the spouse takes a life estate and the descendants take the remainder, and the spouse may instead elect an undivided one-half interest as a tenant in common within six months of the death. A revocable trust counts as a devise for this rule.

A spouse can waive these rights, and the waiver has to be in a written contract, agreement or waiver signed before two subscribing witnesses. In Tescher the Florida Supreme Court held that a spouse’s waiver of homestead rights in a prenup is the legal equivalent of predeceasing the owner, so when no minor child survives, the owner may leave the home by will to anyone. The waiver does not reach a minor child, whose protection is separate, and a waiver of the right to block a devise does not waive the right to join a sale, mortgage or gift during the owner’s life. Florida homestead law covers the three protections, and the spousal waiver page covers the instruments that waive them.

Does the Prenup Have to Name the House?

Naming the house settles conflicts that a general waiver leaves open. In Williams-Paris v. Joseph an 83-year-old man and his 58-year-old fiancée signed an agreement before a notary hours before their wedding. One paragraph described his house by street address and said it “shall not be affected by this Agreement.” Another paragraph waived homestead and every other death-side right. The Fourth District held that the specific paragraph controlled the general one and reversed the finding that she had waived her interest in the house. The court also treated the general homestead reference as covering a home the decedent might buy later, which shows that an agreement with an address clause and a general clause has to say which one governs.

The treatise on Florida marital agreements notes that title insurers are reluctant to rely on a general homestead waiver. A prenup should waive homestead rights in the specific property by address and legal description, and should say whether the waiver also covers any later homestead the owner buys.

What Is the One-Sentence Deed Waiver, and What Does It Not Do?

Florida’s legislature adopted a safe-harbor sentence for deeds in 2018. A spouse who signs or joins a deed containing the sentence, or substantially similar language, waives the devise restriction. The statute gives this text.

“By executing or joining this deed, I intend to waive homestead rights that would otherwise prevent my spouse from devising the homestead property described in this deed to someone other than me.”

The statute also lists what the sentence does not do. The sentence is not a waiver of the protection against the owner’s creditors, during life or after death, and is not a waiver of the restrictions against a mortgage, sale, gift or deed without the spouse’s joinder. A practitioner article on the statute reaches the same reading. The sentence waives one right. Our page on the lady bird deed covers how the deed and the waiver fit together on a married owner’s home.

The 2025 cases add two limits. In Weaver the First District held that the statute does not apply to a lifetime conveyance, because the sentence concerns a devise, which is a transfer at death. In Rogers the Third District said the statute’s enactment calls into question whether older deed wording once accepted by a Fourth District case would suffice today.

What Happened in Mendia, Weaver and Rogers?

Three 2025 appellate opinions turn on whether a document said the word homestead. In each, a house passed from one spouse to a third person.

Mendia. Abraham Galvez and Magali Figueroa married in Cuba in 1961 and bought their Miami home after they came to the United States. In 1998, after his gambling had gone out of control, they signed a postnup that made the wife the sole owner of the marital property, and the husband quitclaimed the house to her the same day. The agreement said he waived any interest in the house on a later dissolution of marriage. The agreement did not address homestead or the death of either spouse. In 2021 Figueroa quitclaimed the house to her second cousin, Jorge Mendia, on a deed a nonlawyer prepared and notarized, and Galvez did not sign it. She died two months later at 85, still married to him after 59 years. The Third District held that the postnup’s waiver was limited to a dissolution and that the 1998 deed never mentioned homestead, so Galvez’s homestead rights survived. The 2021 deed needed his joinder, lacked it, and was void.

Weaver. Kip and Carolyn Weaver bought a property in Okaloosa County on an agreement for deed in 2013. In July 2019 Kip signed a warranty deed that assigned his “marital and homestead interest” and his rights in the property to Carolyn. In 2022 Carolyn deeded the property to herself and her brother as joint tenants with survivorship, and she died in 2023. Kip petitioned to have the property declared homestead, arguing it had vested in him as her surviving spouse. The First District held that the 2019 deed named homestead and marital rights, which was specific enough to leave Kip in the position of a spouse who died first, so Carolyn was free to convey during her life.

Rogers. Stephen and Sharyn Larsson owned a Miami Gardens home as tenants by the entireties. In December 2021 Stephen signed a quitclaim deed, as Sharyn’s agent under a power of attorney she allegedly granted him, that conveyed the home to himself for life with the remainder to James Rogers. An affidavit says Rogers paid a $100,000 check and gave a $50,000 note. Stephen died in January 2022. Sharyn’s guardian sued, and the Third District held that the deed was void because it contained no language waiving homestead rights, and that Rogers had waived a bona fide purchaser defense by not pleading it. The guardian argued that the property then passed to Sharyn by survivorship.

The pointer from all three is the same. The agreement and every later deed have to say homestead, in words a court can point to.

What Should a Prenup Say About the House?

1. The address and legal description. Waive homestead rights in the specific property, and say whether the waiver covers a later homestead.
2. What stays separate. Name the house, the mortgage paydown, passive growth and growth from either spouse’s effort, in words that leave no room for the Doig reading.
3. The credit, if any. Say whether the paying spouse receives a fixed credit or reimbursement, or none.
4. Carrying costs and occupancy. Allocate the mortgage, taxes, insurance and repairs while both spouses live there, and set how long a spouse may stay after a divorce filing and after the owner’s death, for example six months, with the survivor paying utilities and the estate paying taxes and insurance.
5. The deed. When the owner later records a deed, the spouse signs it with the waiver sentence in it, and the spouse’s joinder for a sale or mortgage during life stays required.
6. The minor child limit. Say plainly that the waiver does not affect a minor child’s protection.

The page on what a prenup covers lists the other topics, and second-marriage prenups covers the children’s side.

What if We Buy a House Together After the Wedding?

Title decides more than couples expect. Real property held by a married couple as tenants by the entireties is presumed marital whether they acquired it before or during the marriage, and the spouse who claims otherwise carries the burden of proof. A 2024 amendment added that an interspousal gift of real property needs a writing that complies with Florida’s statute of conveyances, and that a spouse’s joinder in a homestead deed to a third person, made only for that purpose, does not make the property or the sale proceeds marital.

A prenup can set what a jointly titled house is worth to each spouse at divorce, and what each receives at death, before anyone signs a closing statement. A couple that bought a house together after the wedding can sign a postnup that says the same things. Our page on the tenancy by the entirety covers how survivorship works.

What Does a Prenup or Postnup for a House Cost?

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. A review of an agreement or a deed the other side drafted is a flat fee from $750. The fees were posted October 6, 2026 and are honored for 90 days, and government costs such as recording are additional and passed through at cost. Each fee covers one spouse, because one lawyer cannot represent both, and the other spouse needs a separate lawyer. What a Florida prenup costs explains the numbers, and postnuptial agreements covers the after-the-wedding version.

Frequently Asked Questions

Common Situations

The condo owner marrying a renter. A woman owns a $310,000 condo with a mortgage from before the wedding, and her fiancé will pay half of it after the wedding. A prenup would say whether his payments buy any share, and the agreement would name the paydown and the growth.

The widower with children. A widower of 68 owns his home outright and wants it to go to his two daughters. His new wife would hold homestead rights unless she waives them in a signed writing before two witnesses, and the deed carries the sentence too.

The couple who bought a house after the wedding. Two spouses took title as tenants by the entireties and one paid the whole down payment from an inheritance. A postnup would say how the down payment is credited at a divorce.

Sources of Law

• Fla. Const. art. X, §4(c). Fla. Stat. §732.401(1) and (2) (descent of homestead; life estate or one-half election within six months); §732.4015 (devise of homestead; a trust disposition is a devise); §732.702(1) (waiver before two subscribing witnesses); §732.7025(1) and (2) (deed waiver; what it does not waive).
• Fla. Stat. §61.075(6)(a)1.b. (enhancement of nonmarital assets), c. (paydown of principal and passive appreciation, with the coverture fraction), d. (interspousal gift of real property needs a writing under §689.01; added by ch. 2024-237), (6)(a)2. (entireties real property presumed marital), (6)(b)1. and 4. (nonmarital assets, including those excluded by valid written agreement).
• Mendia v. Galvez, No. 3D24-0798 (Fla. 3d DCA Aug. 27, 2025). Weaver v. Hatfield, No. 1D2024-2423 (Fla. 1st DCA Nov. 19, 2025). Rogers v. Guardianship Program of Dade County, Inc., No. 3D24-1405 (Fla. 3d DCA Mar. 12, 2025). City National Bank of Florida v. Tescher, 578 So. 2d 701 (Fla. 1991). Williams-Paris v. Joseph, No. 4D20-1760 (Fla. 4th DCA Nov. 17, 2021) (substituted opinion on rehearing). Herrera v. Herrera, 895 So. 2d 1171 (Fla. 3d DCA 2005). Hahamovitch v. Hahamovitch, 174 So. 3d 983 (Fla. 2015). Doig v. Doig, 787 So. 2d 100 (Fla. 2d DCA 2001). Felice v. Felice, 194 So. 3d 1037 (Fla. 2d DCA 2016). Hooker v. Hooker, 220 So. 3d 397 (Fla. 2017).
• Goethe and Baskies, Homestead Planning Under Florida’s New “Safe Harbor” Statute, 93 Fla. B.J. 36 (May/June 2019) (the deed statute and its limits). Drafting Marriage Contracts in Florida (The Florida Bar, 15th ed.) (title insurers and general homestead waivers).
• Statutes and opinions retrieved October 7, 2026. Opinions read in full from the court’s slip opinion or CourtListener text, not from headnotes. The worked example in the mortgage section is an illustration with invented round numbers and is not a prediction for any house.

When the Couple’s Conduct Overruled the Prenup

What I see is that a house problem surfaces years later, when the couple’s conduct is the only evidence left of what they meant, and the clearest illustration I know is a prenup that nobody disputed.

I see cases where a prenup said one thing about a house and the couple’s conduct said another. Nancy and Timothy Hooker married in New York in 1987 and signed a prenup under which each would keep premarital assets and their appreciation. Each had family money, and they kept separate bank accounts. The couple moved to Florida and shared a passion for horses. In 1989 he bought a vacant lot in Wellington with his own money, titled it to a trust for his benefit, and it grew into a working horse farm where the family lived for about 20 years. She signed the mortgage. In 1997 he formed an LLC to hold the farm, and she signed the warranty deed that moved the farm into it. In October 1997 he also bought a summer house at Lake George, New York, for about $490,000, titled in his name alone, and for their tenth anniversary he sent her a card with a picture of it. She filed for divorce in 2010, when she learned he did not mean to share what the farm’s sale would bring, which turned out to be $4.5 million. The trial court held that both houses were interspousal gifts and therefore marital, and in 2017 the Florida Supreme Court reinstated that judgment.

I have a few take-home points.

The first is that a prenup keeps separate property separate only until the couple treats it as shared. The prenup’s validity was never in dispute. The Supreme Court held that the trial court’s findings of donative intent were supported by competent, substantial evidence.

The second is that no one fact decided the case. The Court said that her signature on the deed, her name on the mortgage, or her running of the property would not alone establish a gift. The trial court weighed the deed into the LLC, 20 years of family life in the house and the anniversary card together.

The third is title and paper. A 2024 amendment now requires a writing that complies with Florida’s statute of conveyances for an interspousal gift of real property. On the Hookers’ facts that amendment may change the result, and I have found no appellate opinion that applies it to facts like theirs, so nobody can say how.

Practice pointer. Put the rule about the house in the prenup, including what happens if one spouse signs a deed or a mortgage, joins an LLC, or retitles the house, and require any transfer between spouses to be a signed deed.

Avoid retitling a premarital house into both names, or into an LLC, without first checking what the prenup says about it.

An honest limit belongs here. The Hooker opinion decides a standard of review, so it does not say that conduct always beats a prenup, and no opinion I reviewed addresses a prenup that named the house and then met conduct like theirs. A prenup that names the house and requires a signed deed for any transfer gives the court a clearer sentence to read.

Kevin D. Klagge, Esq., admitted in Florida since 2012. The cases above are published opinions in other parties’ matters, not matters this firm handled, and none predicts anything 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.