Can We Just Draft a Florida Prenup Ourselves?

Can We Just Draft a Florida Prenup Ourselves?

Florida law lets you. The premarital agreement statute asks for a writing signed by both people, and the Florida Supreme Court held in Casto that a spouse does not need a lawyer for an agreement to be valid. Courts set agreements aside for hidden assets, for pressure and for botched signing formalities, and the absence of a lawyer is not on that list.

A common question I hear is, “We trust each other and plan to split everything evenly, so why would a template not be enough?” For two people with small, similar estates, no children from earlier relationships and no house in one name, a template may be enough. The risk grows with each of these facts. One of you owns a home or a business, one of you has children from an earlier marriage, or one of you gives up the right to inherit from the other.

The eight gaps below are the places those facts show up. Each is tied to a Florida opinion, and the cases are warnings only. None predicts what a court would do with your agreement.

Are Online Prenups Legal in Florida?

An online prenup is a legal document when it follows the same rules as any other agreement, and Florida has no rule against forms. The Fourth District’s 2021 decision in Williams-Paris v. Joseph shows what happens when the form is where the care ended.

A man of 83 told his 58-year-old fiancée a year before the wedding that he wanted a prenup. She did not want to pay for one, and the subject lapsed. Their wedding was planned for Martha’s Vineyard with his family and guests already there. At 7 a.m. on the wedding day he woke her, said he would not marry her unless she signed, and sent her online to find a form. She chose a legal-forms website that built an agreement from answers to prompts, and most of the answers came from him. The couple printed it, drove to a notary, and signed in the notary’s presence hours before the 4 p.m. ceremony. He died four years later without a will.

The court affirmed the ruling against her coercion claim without discussion. The fight that reached the court of appeal was about what the website’s paragraphs said and who had to witness them. Two of the eight gaps come from that opinion, and they follow below.

Does a Template Include the Two Witnesses?

Florida’s waiver statute lets a spouse give up the elective share, homestead and the other death-side rights by “a written contract, agreement, or waiver, signed by the waiving party in the presence of two subscribing witnesses.” A notary is not a witness, and the other spouse is not one either. Footnote 1 of Williams-Paris says so, citing a 2008 case in which a notary who did not sign as a witness did not count. The court did not apply the point, because nobody had raised it in the trial court. The footnote adds that the judges found no case treating one party’s signature as the other party’s witness.

I found no Florida appellate opinion that decides what follows from a missing witness, so nobody can tell you with certainty how a court would treat a notary-only signing. The pattern in that case, two spouses and a notary at a counter, is the pattern a template invites. A prenup that only divides property in a divorce does not need the witnesses. Most templates cover divorce and death in one document, and the witnesses belong to the death half. Two adults who are neither spouse, signing as witnesses beside each of you, close the question for the cost of four signatures.

Does a Template Include Real Disclosure Schedules?

A template supplies a blank schedule, and the cases turn on what gets written in it. In Casto a developer’s wife signed an agreement for about $225,000 when her husband’s holdings were estimated at up to $10 million. Her only list was one she wrote by hand, with the names of towns where he owned shopping centers, “a large sum of gold bars” and horses, and no value for any of it. The Florida Supreme Court set the agreement aside.

In Waton a husband listed his 25 percent interest in an insurance agency as “Exact value unknown,” and attached a note that the company grossed about $750,000 a year in renewal commissions. The interest was later worth $386,000, and the agreement held after 18 years. The note that went with the list is what made a list without a value enough.

For a prenup signed since October 1, 2007, the statute asks whether the signer received a fair and reasonable disclosure of the other person’s property and debts, whether the signer waived further disclosure in writing, and whether the signer had adequate knowledge anyway. A schedule with a value beside every item, signed and attached, answers the first question. Florida requires no disclosure at all for a death-side waiver signed before the wedding, and the divorce side still depends on it, so a thin schedule can hold at death and fail in a divorce. An agreement signed after the wedding is a different test, because each spouse must then make a fair disclosure for any death-side waiver. See postnuptial agreements.

Does a Template Cover the Growth of Separate Property?

Most templates say that what each person owned before the wedding stays separate. Florida’s property-division statute separately counts as marital any growth in a separate asset that results from either spouse’s efforts or from marital money. 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 increase as marital and divided it equally between the spouses.

Wording decides what a prenup does with growth. In Hahamovitch the wife was 28 and the husband 46 when they signed a release that covered assets in his name, including assets he acquired later and their enhancement. After 22 years the wife sought a share of what the marriage had built, and the Florida Supreme Court enforced the release as written. 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. A template that says each person keeps what is theirs does neither of those jobs. The agreement has to say, in so many words, whether passive growth, growth from effort, future acquisitions and earnings are separate. The page on a prenup and the house works through the mortgage side.

Does a Template Waive Alimony and Changes to It?

A Florida prenup may waive alimony, and the wording of the waiver decides how far it reaches. In Hahamovitch the Fourth District held that a general waiver of alimony “except as otherwise provided” was not specific enough to waive the wife’s right to ask a court to change the alimony the agreement itself provided. In Snedaker a clause waiving “any and all rights to receive any further alimony, support or maintenance payments of any kind” did close the door on modification.

Two limits sit outside the wording. Temporary support and fees while a divorce is pending cannot be waived, and in Lord the Fourth District refused to enforce a clause making each side pay its own fees in the divorce for that reason. Florida’s statute also lets a court order support to a spouse who would otherwise qualify for public assistance, whatever the agreement says. A template that says “each party waives alimony” has to be read against both limits, and the waiver of modification has to be written as its own sentence.

Does a Template Name the House, in the Agreement and in the Deed?

The same Williams-Paris agreement had a paragraph that listed the decedent’s house by street address and said the house “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, reversed the finding that she had waived her interest in the house, and sent the case back to decide the extent of her interest. A form that lets each paragraph be filled in separately can produce the same conflict, and each paragraph about the house has to be read against the general waiver.

The house has a second problem. In 2025 the Third District decided Mendia v. Galvez. A Miami couple married since 1961 signed a postnuptial agreement in 1998 after the husband’s gambling, and he quitclaimed the house to his wife the same day. Neither document mentioned homestead or what happens at death. In 2021 she quitclaimed the house to her second cousin and died two months later at 85. The husband had not signed the second deed, and the court held that deed void, because nothing he signed in 1998 waived his homestead rights. A template that waives “all rights” and a deed that never mentions homestead leave the house exposed to that argument. The page on a prenup and the house covers the one-sentence deed waiver and its limits.

Does a Template Deal With 401(k) and Pension Rights?

Federal law gives the spouse of a 401(k) or pension participant a right to the account at death, and a Florida prenup cannot waive it by itself. The federal regulation says an agreement entered into before marriage does not satisfy the plan’s spousal consent requirement, even when it is signed within the election period. The Eleventh Circuit applied that rule in Lasche, where a prenup and its post-wedding amendment waiving retirement benefits did not cure a consent that no plan representative or notary had witnessed, and the surviving spouse took the account.

The fix is a consent signed on the plan’s own form after the wedding. A prenup can promise to sign that form and put a date on the promise. Our page on prenups and retirement accounts has the details.

When Should We Sign a Template Prenup?

A template can be filled in during an afternoon, and the calendar then decides whether the agreement is attacked. In Bakos a dentist worth about $800,000 and a hygienist worth about $12,000 signed within 24 hours of the wedding after he said there would be no marriage without the agreement, and the agreement was voidable. In Flaherty the final draft reached the wife at 11:30 p.m. the night before a Las Vegas wedding, after her own lawyer had advised her not to sign, and the court held it should have been set aside.

The other side of the line is just as clear. Ten days before the wedding was enough in Gordon, and months of negotiation saved the agreement in Francavilla even though the wife signed an hour before a courthouse ceremony while seven months pregnant. Saying that there will be no wedding without a prenup is not duress by itself in Florida. The paper trail is what matters, with dated drafts, a disclosure schedule delivered early and time to read. Start months ahead. The page on how to get a prenup in Florida lays out the sequence.

What Does a Review of Our Draft Cost?

If you drafted the agreement or filled in a template, I review it for one spouse for a flat fee from $750, posted October 6, 2026 and honored for 90 days. The review is a full read of the draft and its disclosures, with a written analysis and a call with the attorney. The review reads the draft against each of the eight gaps above and tells you which apply to your facts and what to change. A prenup drafted for one spouse from scratch is a flat fee from $2,450, and a postnup drafted for one spouse is a flat fee from $2,950. Government costs such as recording are additional and passed through at cost.

I represent one of you. The other spouse needs a separate lawyer, and that lawyer’s fee is separate. What a prenup review covers and what a Florida prenup costs explain the numbers, and HelloPrenup compared with a Florida attorney compares one popular online product with a lawyer-drafted agreement.

Frequently Asked Questions

Common Situations

The couple with a condo in one name. A nurse owns a $380,000 condo with a mortgage from before the wedding, and her fiancé earns more than she does. The couple fills in a template that says each person keeps what they owned. A review would ask who pays the mortgage after the wedding, and whether the agreement says what happens to the paydown and to growth.

The second marriage at 64. A widow and a widower each have grown children, and they build an agreement from an online form and sign it before a notary. A review would check the witness block, the schedules, the waiver of each death-side right and the wording about the house, because the children’s inheritance depends on every one of them.

The founder with a company two years old. The agreement says the business is separate. A review would check whether it says that growth from the founder’s own work, and from marital money, is separate too.

Sources of Law

• Fla. Stat. §61.079(3) (writing signed by both), (4)(a) (content), (7)(a) and (c) (enforcement), (10) (probate code unaffected); §732.702(1) (waiver before two subscribing witnesses) and (2) (disclosure required only for agreements executed after marriage); §61.075(6)(a)1.b. and c. and (6)(b) (marital and nonmarital assets). 29 U.S.C. §1055(c)(2); Treas. Reg. §1.401(a)-20, Q&A-28.
• Casto v. Casto, 508 So. 2d 330 (Fla. 1987). Williams-Paris v. Joseph, No. 4D20-1760 (Fla. 4th DCA Nov. 17, 2021) (substituted opinion on rehearing), including footnote 1 (dictum on subscribing witnesses). Waton v. Waton, 887 So. 2d 419 (Fla. 4th DCA 2004). Herrera v. Herrera, 895 So. 2d 1171 (Fla. 3d DCA 2005). Hahamovitch v. Hahamovitch, 174 So. 3d 983 (Fla. 2015), approving 133 So. 3d 1008 (Fla. 4th DCA 2014) (general alimony waiver did not waive modification). Doig v. Doig, 787 So. 2d 100 (Fla. 2d DCA 2001). Snedaker v. Snedaker, 660 So. 2d 1070 (Fla. 4th DCA 1995). Lord v. Lord, 993 So. 2d 562 (Fla. 4th DCA 2008).
• Mendia v. Galvez, No. 3D24-0798 (Fla. 3d DCA Aug. 27, 2025). Lasche v. George W. Lasche Basic Profit Sharing Plan, 111 F.3d 863 (11th Cir. 1997). Bakos v. Bakos, 950 So. 2d 1257 (Fla. 2d DCA 2007). Flaherty v. Flaherty, 128 So. 3d 920 (Fla. 2d DCA 2013). Gordon v. Gordon, 25 So. 3d 615 (Fla. 4th DCA 2009). Francavilla v. Francavilla, 969 So. 2d 522 (Fla. 4th DCA 2007). Eager v. Eager, 696 So. 2d 1235 (Fla. 3d DCA 1997). Weintraub v. Weintraub, 417 So. 2d 629 (Fla. 1982) (the same prenup can fail in a divorce and hold at death). Johnson v. Johnson, 140 So. 2d 358 (Fla. 2d DCA 1962).
• Statutes and opinions retrieved October 7, 2026. Opinions read in full from official or CourtListener text, not from headnotes.

What I Look For When I Review a Draft Prenup

When I review a plan someone else drafted, I read it the way opposing counsel would, and the clearest model I know of a careful agreement is a Florida case from 1962.

In one case I have reviewed, a Florida widower of 71, in poor health, planned in 1949 to marry his 35-year-old housekeeper, who had nursed his first wife and earned $15 a week. Several days before the wedding he told a lawyer he meant to offer her a fixed sum from his estate in place of every other claim. The lawyer said he could prepare a binding agreement only if the housekeeper received a full and fair statement of everything the widower owned. The lawyer dictated the agreement in front of both of them, told her twice that she should have her own lawyer, and explained that she was giving up homestead, dower and every inheritance right. She declined separate counsel. The two signed the agreement before two witnesses, and she signed an itemized statement of his property, which totaled $248,470, before two witnesses as well. He died in 1960. She elected dower, the executor asked the court to confirm the agreement, and the Second District affirmed a decree enforcing it, writing that the evidence of full and fair disclosure was “overwhelming.”

I have a few take-home points.

The first is the schedule. The lawyer would not draft until the widower produced a statement of every asset with a value beside each item, and the housekeeper signed it. A blank schedule is the part of a template that a couple fills in last and with the least care.

The second is the signing. Both documents were signed before two witnesses, which is the formality Florida’s waiver statute requires today for any waiver of a spouse’s death-side rights. In the template cases I have read, the signature page is where that formality goes missing.

The third is the advice. The lawyer urged her twice to get her own lawyer and told her what she gave up. She declined, and the court still had a record of what she was told, which is what a reviewing lawyer’s written advice supplies for the spouse who has no one else.

Practice pointer. When I review a draft I check four things before anything else. The four are a schedule with a value beside each item that the signer received before the signature, two witnesses who are not the spouses, a waiver that names each right, and a recital of why each term was agreed. A draft that has all four is a draft worth improving, and a draft that lacks them needs more than a review.

Avoid signing any agreement that has a blank or lump-sum schedule, and avoid leaving the witness block to the notary.

An honest limit belongs here. The 1962 case predates Florida’s premarital agreement statute, so the test a court applies to a prenup signed today is worded differently, and I have found no Florida appellate opinion in the cases I reviewed that applies the statute’s disclosure language to a template agreement. A review finds the omissions in a document. A review cannot measure how a court will see the circumstances of your signing.

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.