What Does a Prenup Cover (and What It Can’t)?

What Do Prenups Do?

A prenup replaces Florida’s default rules with the rules the two spouses chose, for a divorce and for a death. Without one, Florida divides marital property starting from an equal split and gives a surviving spouse 30 percent of the elective estate plus homestead rights, whatever the will says. With one, the couple decides who keeps the business, who owes the student loans, whether either spouse can claim alimony, and whether a surviving spouse gives up the elective share. A prenup does nothing until the wedding, and the court still decides child support and custody.

What a Prenup Can Cover

Separate vs. marital property. Keep premarital assets, a business, or a property clearly yours.
Future acquisitions and earnings. Classify what you earn or inherit during the marriage as separate, if you choose.
Debt. Keep each spouse’s debts their own.
Alimony. Decide in advance whether either spouse can claim support, and how much.
Death and your estate. Waive or shape your spouse’s claim on your estate (the elective share and homestead), to protect children from a prior relationship.

What Does a Prenup Protect?

A prenup protects what it names, starting with the property you bring into the marriage, the property you receive later, and the business you build. The two largest items in Florida are usually the home and the 30 percent elective share, which a prenup can waive in writing. Three questions come up most. Assets you get after the wedding? Yes, if drafted to, including an inheritance or the growth of a business (more in the prenup guide for business owners). Your spouse’s debt? Yes, it can keep their creditors off your separate property. Future earnings? Yes, with the right language. These are the high-value uses most couples never think to include.

Make sure yours covers what matters.

A No-Cost Phone Consult maps what to include for your situation.

Book a no-cost consult

The One Thing It Can’t Do

A prenup cannot decide child support or custody in advance; Florida sets those by the child’s best interests later. It also cannot include anything illegal, and grossly one-sided terms (or terms signed under pressure, without disclosure) can be struck down. The agreement that holds up is the fair one, with full disclosure, independent advice for each person, and signatures well before the wedding. The process is laid out in how to get a prenup in Florida, and the grounds Florida allows for setting an agreement aside are in what makes a prenup invalid. How the death terms work is covered in does a prenup apply at death.

Frequently Asked Questions

Does a Prenup Protect Assets I Get After Marriage?

It can, if you draft it that way. A prenup can classify future acquisitions, an inheritance you receive during the marriage, the growth of a business, or future earnings, as separate property, so they do not become marital. This is one of the most valuable and most overlooked uses. Without it, Florida law may treat much of what you build during the marriage as shared.

Does a Prenup Protect Me From My Spouse’s Debt?

Yes, a prenup can keep each spouse’s debts their own, so a creditor of one cannot look to the other or to property the agreement makes separate. For someone marrying a partner with student loans, business debt, or a rocky financial history, this alone can justify the agreement.

Can a Prenup Cover What Happens at Death, Not Just Divorce?

Yes, and people forget this. In Florida a surviving spouse can claim about 30% of your estate (the elective share) plus homestead rights regardless of your will, unless waived. A prenup is how you waive or shape those rights, essential for protecting children from a prior relationship. It works alongside your will and trust, not instead of them.

What Can’t a Prenup Do?

It cannot decide child support or custody in advance, Florida determines those by the child’s best interests at the time, no matter what the agreement says. It also cannot include anything illegal or that encourages divorce, and terms that are grossly unfair or signed under pressure can be struck down. A "fair" prenup, with full disclosure and independent advice for each person, is the one that holds up.

What Should You Include in a Prenup?

Start with a schedule of what each of you owns and owes today, with values. Then the agreement should say what stays separate, including growth and income from separate property, how property bought during the marriage is owned, who is responsible for each debt, whether alimony can be claimed, and what each spouse can claim at death, naming the elective share, homestead, exempt property and the family allowance. A clause requiring each of you to sign a will or trust that carries the plan out, and a choice of Florida law, finish it.

What Should a Woman Ask for in a Prenup?

The answer turns on which side of the money a person is on, not on gender. The spouse with fewer assets, or the one planning to step back from a career to raise children, should ask for a full financial disclosure in writing, a separate lawyer, and something in exchange for any waiver, such as a life insurance policy, a lump sum at death, a right to stay in the home for a period, or support that grows with the length of the marriage.

What Should a Man Ask for in a Prenup?

The same as anyone else in his position. The spouse bringing a business, a house or children from an earlier marriage should ask that those assets and their growth stay separate, that the death rights be waived by name, and that the agreement be signed months before the wedding with two lawyers and a disclosure schedule, because those steps are what keep the agreement enforceable.

What Is an Ironclad Prenup?

No agreement is immune from challenge, so ironclad is a goal rather than a type of document. In Florida an agreement comes closest when it is signed voluntarily well before the wedding, carries a real financial disclosure from each side plus a written waiver of further disclosure, gives each spouse a separate lawyer, and is signed before two subscribing witnesses so the death-rights waiver works too. Those steps answer every ground Florida allows for setting a prenup aside.

What Is a Fair Prenup?

A fair prenup is one both people understood and chose. Florida does not require the terms to be equal, and a one-sided agreement is enforceable if the other spouse had a fair disclosure, waived it in writing, or already knew the finances. Fairness in practice means honest numbers, time to read, a separate lawyer for each side, and terms that make sense for the marriage the couple expects.

What Does a Typical Prenup Look Like?

A typical Florida prenup opens with recitals about the coming marriage, then sets out the property and debt terms, alimony, the waiver of rights at death, and boilerplate such as choice of law and how the agreement can be amended. Each spouse’s financial disclosure is attached as an exhibit or kept as a separately referenced volume, and the signature page carries both signatures, two witnesses and a notary.

Can a Prenup Include an Infidelity Clause?

We advise against it. Florida is a no-fault divorce state, meaning a court does not decide who wronged whom, and clauses that punish cheating or penalize the spouse who files first cut against that policy. A judge can refuse to enforce that kind of term, and litigating it drags the rest of the agreement into court with it. A prenup does its real work by classifying property, debt, and support, not by policing behavior. If trust is the worry, that is a conversation to have before the wedding, not a clause to draft into the contract.

Updated on October 7, 2026. Reviewed by Kevin D. Klagge, Esq., Fla. Bar No. 99502. General information about Florida law, not legal advice. Each spouse should have independent counsel. Do not send confidential information until we have agreed to represent you.

More Guides on Florida Prenuptial Agreements

Try the Which Estate Plan Do I Need? (quiz).