What Happens If You Don’t Sign a Prenup in Florida?

1. What Happens If You Don’t Have a Prenup?

Nothing happens to the marriage. A couple married without a prenup is married in every sense, and Florida simply applies its own rules to the money questions the couple did not answer themselves.

Florida has two sets of default rules, and they work differently.

• Divorce. Florida’s equitable distribution statute sorts everything into marital and nonmarital property and divides the marital part.
• Death. The probate code gives a surviving spouse claims against the estate that a will cannot remove, including the elective share and homestead rights.

Most people who decide against a prenup are thinking only about divorce. The death rules apply to every marriage that does not end in divorce, which is most of them.

2. What Happens If You Divorce Without a Prenup?

A Florida judge first sets apart each spouse’s nonmarital assets and debts, then divides the marital ones beginning with the premise that the split should be equal. The judge can depart from equal for reasons the statute lists, including each spouse’s contributions to the marriage and to raising children, the length of the marriage, an interrupted career, the desirability of keeping a business intact, and the intentional waste of marital assets within two years before the divorce was filed.

Florida defines both categories, and the nonmarital list has four entries that matter for most couples.

• everything each spouse owned before the marriage, and anything acquired in exchange for it,
• gifts from third parties and inheritances received by one spouse, and anything acquired in exchange for them,
• income from nonmarital assets, unless the couple treated, used or relied on that income as marital, and
• anything the couple excluded by a valid written agreement.

Marital property includes everything acquired during the marriage by either spouse, retirement benefits earned during the marriage, and the marital interest in a closely held business, valued at fair market value. The last line on the nonmarital list is the one a prenup uses, and without a prenup it is empty.

3. How Separate Property Becomes Marital

The categories above look clean on paper. In a long marriage, separate property drifts into the marital column in five ways the statute names.

1. Growth from effort or marital money. When a separate asset grows because of either spouse’s work during the marriage, or because marital money was spent on it, the growth is marital. A business you founded before the wedding that doubled in value because you ran it full time is the common example.
2. Mortgage payments from marital earnings. When a premarital house’s mortgage is paid down from marital funds, the principal paid and a share of the passive appreciation become marital, measured by a formula the statute sets out.
3. Joint title as tenants by the entireties. Real estate or personal property titled to both spouses this way is presumed marital, and the spouse who says otherwise has to prove it.
4. Income treated as marital. Rent from a premarital condo deposited in the joint account and spent on household bills is likely marital.
5. Gifts between spouses. An interspousal gift during the marriage is marital, and a gift of real estate between spouses requires a written deed.

Money that has been mixed into a joint account can be hard to trace back to its separate source years later. Whether an inheritance is marital property in Florida covers that problem for inherited money. What happens to a trust in a Florida divorce covers how a trust interacts with these rules.

4. What Happens at Death Without a Prenup?

The death rules are where couples without a prenup are most surprised, because a will does not override them.

• The elective share. A surviving spouse can claim 30 percent of the elective estate, which includes the probate estate, the homestead, revocable trust assets and joint and payable-on-death accounts. On a $1.2 million estate that is $360,000. See the Florida elective share.
• The home. Florida’s constitution stops you from leaving your homestead by will to anyone but your spouse while a spouse survives you. If you leave descendants, the spouse takes a life estate in the home or elects an undivided half interest, and the descendants take the rest. See what a surviving spouse gets in the house.
• A will signed before the wedding. If your will does not provide for the spouse you married later, and does not show an intention not to, the spouse takes the share they would have received if you had died without a will. With children from another relationship that is half the estate, and without any descendants it is all of it. See pretermitted spouses.
• No will at all. The spouse takes the whole estate, or half where either spouse has children from another relationship. See who inherits without a will.
• Exempt property and the family allowance. Household furniture up to $20,000, two vehicles, and up to $18,000 for support during administration.

A prenup or postnup can waive every one of those rights. Nothing else short of a signed spousal agreement, or a deed with the statutory homestead waiver language, removes them.

5. How to Protect Premarital Assets Without a Prenup

A good deal of protection is available in a divorce without any agreement, provided the habits start on the wedding day.

• Keep separate assets in your name alone. Adding a spouse to a premarital house as a tenant by the entireties creates a presumption that the house is marital.
• Keep separate money separate. An inheritance or premarital savings belongs in its own account, and income from it should stay there rather than pay household bills.
• Watch the mortgage. Paying a premarital mortgage from a paycheck earned during the marriage moves part of the house into the marital column.
• Keep records. Statements showing the value of each separate asset on the wedding day are what let a court set it apart later.

None of those habits affect the death side. The elective share counts separate property, inherited property and the home alike. The only ways to waive it are a written spousal agreement signed with the formalities Florida requires and, for the home alone, a deed that carries the statutory waiver language. See the spousal waiver of homestead, and for the divorce side in more depth, how to protect your assets in a Florida divorce.

6. What Happens If You Sign a Prenup and Get Divorced?

The agreement decides the questions it covers. A prenup that keeps a business, a house and a retirement account separate, and waives alimony, takes those subjects away from the judge. Anything the agreement does not address falls back to the default rules above.

Two limits apply to every agreement. Child support is set by the court and cannot be reduced by a prenup. And the spouse resisting the agreement can try to set it aside on the grounds Florida allows, which are an involuntary signature, fraud, duress, coercion or overreaching, or unconscionable terms combined with missing financial disclosure. What makes a prenup invalid in Florida walks through each ground.

7. A Postnup Is the Fix After the Wedding

A couple who married without a prenup has not lost the chance. Florida lets a spouse waive the elective share, homestead and every other spousal right at death before or after the marriage, and a postnuptial agreement can settle the divorce questions as well.

The cost of signing after the wedding is one requirement. Each spouse must make a fair disclosure of their estate to the other for a waiver signed after the marriage, where none is required before. Prenup versus postnup explains why Florida draws the line there.

What It Costs

A prenup or postnup is a flat fee quoted at consult. The number depends on what has to be valued and disclosed and on whether a business, a trust interest or children from an earlier marriage are involved.

Where the agreement is paired with new estate documents, those prices are posted. The will-based plan is flat fee from $1,200 for one person and $1,950 for a couple, and the trust-based plan is flat fee from $3,200 for one person and $4,500 for a couple. Posted fees are honored for at least 90 days from September 2026. Government costs are additional and passed through at cost.

Frequently Asked Questions

Common Situations

The condo owned before the wedding. A nurse owned a $310,000 condo when she married and kept the title in her name. For twelve years the mortgage was paid from the couple’s joint account. In the divorce, the condo started as hers, and the principal paid during the marriage plus a share of the appreciation came out as marital property to be divided.

The widower who remarried and never updated his will. A retired engineer’s will left everything to his two sons. He remarried at 70 and signed nothing. When he died, his new wife could claim a pretermitted share of half the estate, or her 30 percent elective share, and a life estate in the house. A postnup signed in the first year of the marriage would have let him decide.

The inheritance in the joint account. A husband inherited $400,000 and deposited it in the account the couple used for everything. Ten years later nobody could trace which dollars were his inheritance, and the money he believed was separate was treated as marital.

Sources of Law

• Fla. Stat. §61.075(1) (court sets apart nonmarital assets and begins with the premise that distribution of marital assets should be equal, with listed factors including contribution, duration, career interruption, retaining a business intact, and intentional dissipation within 2 years before filing); §61.075(6)(a)1.a. to f. (marital assets, including enhancement of nonmarital assets from marital efforts or funds, mortgage paydown on nonmarital real property from marital funds with a coverture-fraction share of passive appreciation, interspousal gifts with real property requiring a writing complying with §689.01, retirement benefits accrued during the marriage, and the marital interest in a closely held business at fair market value); §61.075(6)(a)2. and 3. (entireties property presumed marital); §61.075(6)(b)1. to 4. and 6. (nonmarital assets, including premarital assets, noninterspousal gifts and inheritances, income from nonmarital assets unless treated, used, or relied upon as marital, and assets excluded by valid written agreement). Retrieved October 2, 2026.
• Fla. Stat. §732.2035 and §732.2065 (elective estate; 30 percent); §732.102 (spouse’s intestate share); §732.301 (pretermitted spouse); §732.401 (descent of homestead); §732.402 (exempt property); §732.403 (family allowance up to $18,000); §732.702 (waiver of spousal rights before or after marriage; disclosure required after marriage only); §732.7025 (waiver of homestead rights through deed). Fla. Const. art. X, §4(c).
• Fla. Stat. §61.079(2)(a) and (5) (premarital agreement is made between prospective spouses and takes effect on marriage); §61.079(4)(b) (child support may not be adversely affected). Fla. Stat. §741.211 (common-law marriages entered into after January 1, 1968 are not valid).
• McAbee v. Edwards, 340 So. 2d 1167 (Fla. 4th DCA 1976) (facts as alleged in the complaint, taken as true on judgment on the pleadings; pretermitted-spouse claim under former §731.10, the predecessor of §732.301, settled for $27,000). Opinion read in full.

What a Marriage Does to a Plan Nobody Revisits

In my practice, the version of this problem I see most is a person who did everything right before the wedding and nothing after it.

In one case I have reviewed, a Florida mother had a lawyer write a will in 1960 leaving her entire estate to her daughter. Later she remarried. According to the daughter’s lawsuit, the mother went back to the same lawyer, told him about the marriage, and asked him to redraft the will so her daughter would stay the only beneficiary. He told her no change was needed. She died in 1972, still married, with the 1960 will untouched. Her husband claimed the share Florida gives a spouse the testator married after signing the will, and the daughter paid $27,000 to settle his claim before suing the lawyer to get it back.

I have a few take-home points.

The first is that the mother did what careful people do. She had a will, she noticed the marriage changed something, and she asked a professional. The rule that cost her daughter $27,000 exists to protect a spouse who was left out of a will written before the marriage, and Florida still applies it today unless the will provides for the spouse, shows an intention not to, or the spouse signed a prenup or postnup that provided for or waived the share.

The second is that a marriage changes an estate plan whether or not anyone writes anything down. A couple that signs no agreement has still made decisions, because Florida’s defaults are a set of decisions made for them.

Practice pointer. On the day you marry, put three documents on the table, namely the will, the deed to the home and the beneficiary forms. If any of them is meant to leave property away from your new spouse, that plan needs either a signed spousal waiver or a new will that addresses the marriage, and usually both.

Avoid relying on a will signed before the wedding to keep property in your family. A spouse left out of it holds rights the will cannot take away.

An honest limit belongs here. The facts above come from the daughter’s complaint, which the appellate court took as true at an early stage of the case, and the opinion does not say how her claim against the lawyer ended. What the case shows is the cost of the default rule, which is a matter of record.

Kevin D. Klagge, Esq., admitted in Florida since 2012. The case above is a published opinion in other parties’ matter, not a matter this firm handled, and it predicts nothing about yours.

Updated on October 2, 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. Do not send confidential information until we have agreed to represent you.