What Is a Prenup?

1. What Is a Prenup?

A prenup (short for prenuptial agreement) is a contract between two people who plan to marry. Both sign it before the wedding, it takes effect on the day they marry, and it decides how their property, debts and support are handled if the marriage ends. Florida’s statute calls it a premarital agreement, and the words prenup, prenuptial agreement and premarital agreement mean the same document. Lawyers also use the older word antenuptial.

In simple terms, a prenup is a set of rules for your own money, written by the two of you, so a judge does not apply Florida’s default rules in your place. Where the default rules would give a result you would not choose, the agreement gives the result you did choose.

A common question I hear is, “Does a prenup mean we expect to get divorced?” A prenup means the two of you decided the rules while you still agree. The agreement works at a funeral as readily as in a courtroom, and the death side is the half most people forget.

2. What Does a Prenup Do?

A prenup replaces two sets of Florida default rules, one for divorce and one for death. The two sets are decided by different courts under different statutes, and the table shows what each one does when nobody has signed anything.

The dollar figures are why the death column matters. On an $800,000 estate the 30 percent elective share is $240,000, and the surviving spouse takes it whatever the will says. Where the owner leaves a spouse and children, the surviving spouse also has homestead rights in the house, which in Florida means a life estate or a choice of an undivided half interest. Only a signed waiver changes any of that. What happens if you don’t sign a prenup goes through each default.

The short answer to “what do prenups do” is that a prenup protects a business, an inheritance, a house or the children of an earlier marriage from the default rules, in both a divorce and a death.

3. How Does a Prenup Work in Florida?

A Florida prenup moves through five steps.

1. Disclosure. Each person lists assets, debts and income with dollar values, and the two lists are attached to the agreement.
2. Drafting and review. One side’s lawyer drafts, and the other person’s lawyer reviews and negotiates.
3. Signing before the wedding. The statute requires a writing signed by both parties, and no payment other than the marriage itself is needed to make it binding. A waiver of death-side rights also needs two subscribing witnesses under the probate statute.
4. The wedding. The agreement takes effect when the two of you marry.
5. A divorce or a death. The agreement stays in a drawer until then. A court enforces it unless the person challenging it proves a ground for setting it aside.

The date on the signature page decides which test the divorce court applies. A prenup signed on or after October 1, 2007 falls under Florida’s Uniform Premarital Agreement Act, which refuses enforcement when the challenger proves the signing was involuntary, the agreement came from fraud, duress, coercion or overreaching, or the agreement was unconscionable when signed and the challenger had no fair disclosure, never waived disclosure in writing and had no adequate knowledge of the other person’s finances. A prenup signed earlier, and any agreement signed after the wedding, falls under the Florida Supreme Court’s 1987 decision in Casto v. Casto. Casto set aside an agreement through fraud, duress, coercion or overreaching, or through an unfair agreement combined with the challenger’s lack of knowledge of the other person’s property.

One honest limit belongs here. I found no Florida appellate decision that applies the statute’s own enforcement test to a prenup signed after 2007, so lawyers still reason from Casto and the statute’s text together.

Timing is the fact that gets agreements attacked. In Lutgert v. Lutgert a husband worth at least $3 million produced the agreement at a jeweler’s within 24 hours of a 12:30 a.m. airport wedding with the honeymoon cruise already booked, and told his fiancée there would be no wedding without it. The Second District held in 1976 that the circumstances raised a presumption the husband never rebutted, and the wife was free of the agreement. A prenup signed months ahead, with a disclosure schedule and two lawyers, avoids that fight, and I ask clients to allow two to four weeks between the first draft and the signing. How to get a prenup in Florida sets out the timeline.

4. What Can a Prenup Cover and What Can It Not?

Florida’s statute lets the couple contract about each of these.

• Property. Rights in the property of either spouse, whenever and wherever acquired, including income and earnings, and the right to buy, sell, mortgage or manage it.
• What happens at separation, divorce or death. Who keeps the business, the house and the retirement accounts.
• Alimony. The couple can set, modify, waive or eliminate spousal support. Florida courts have enforced a complete alimony waiver, as the Fifth District did in McNamara v. McNamara in 2010.
• A will, a trust or a life insurance policy. The agreement can require the spouses to carry out its terms through those documents and can decide who owns a death benefit.
• The choice of law. The couple can name the state whose law reads the agreement.

Four things sit outside the agreement’s reach.

1. A child’s right to support. The statute says a premarital agreement cannot adversely affect it.
2. Support that leaves a spouse on public assistance. A court may order support to the extent needed to avoid that result, whatever the agreement says.
3. Temporary support and legal fees while the divorce is pending. The Florida Supreme Court in Belcher v. Belcher (1972) treated a waiver as one factor and not as conclusive, and the Fourth District applied the same policy in Khan v. Khan (2012).
4. Anything the agreement does not say. A prenup that deals only with property leaves alimony open, as Cladis v. Cladis (Fla. 4th DCA 1987) shows, so the wording has to name each right the couple means to settle. I draft with the full list of rights in front of me.

What a prenup covers lists the clauses one by one, and what makes a prenup invalid covers the grounds for setting one aside.

5. What Happens to a Prenup When One of You Dies?

At a death the probate court enforces the waivers in the prenup, and it asks for less than a divorce court does. Florida law lets a surviving spouse waive the elective share, the intestate share, the pretermitted share, homestead, exempt property, the family allowance and the preference to serve as personal representative. The waiver must be a writing “signed by the waiving party in the presence of two subscribing witnesses.” A waiver of “all rights” in the other spouse’s property or estate reaches every one of those claims unless the waiver says otherwise.

The probate statute adds that no disclosure of the other spouse’s estate is required for an agreement signed before the marriage. The Florida Supreme Court held in Stregack v. Moldofsky (1985) that nondisclosure in any form cannot invalidate a premarital agreement in the probate proceeding of a deceased spouse, even when the widow alleged she was told her husband had no assets and he had about $250,000. The same agreement can still fail in a divorce for lack of disclosure, which is the point of the case told at the end of this page.

The home follows the same rule. The Florida Supreme Court held in City National Bank of Florida v. Tescher (1991) that when the owner leaves no minor child and the surviving spouse waived homestead rights, nothing in the constitution stops the owner from leaving the house to anyone in a will. A minor child changes that result, because a spouse cannot waive a child’s protection.

Two more rules surprise people. The law in effect at the death governs the validity of the agreement, as the Second District held in Estate of Sage v. Sage (1987). A waiver also reaches rights the legislature created after the signing, as the Third District held in Estate of Garcia v. Garcia (1981), where a 1956 waiver of any claim covered the elective share created in 1976. How a prenup works at death has the full treatment, and prenup and your will covers how the two documents fit.

6. Do You Need a Lawyer for a Prenup?

Florida does not require a lawyer for a prenup, and the cases say that signing without one is not a ground for setting the agreement aside by itself. Each person should still have their own lawyer. The agreement can waive claims worth hundreds of thousands of dollars, and a signature given without advice is the one a court is asked to examine.

A lawyer on each side also does something a form cannot. When both people have separate counsel, the negotiation is arm’s length. When they do not, the Fourth District has said the spouses still owe each other fiduciary-like candor (Tenneboe, 1990). A lawyer does not cure a misrepresentation either. In Kearney v. Kearney (Fla. 1st DCA 2013) two lawyers told the wife not to sign, and the agreement was set aside anyway for the husband’s understatement of his income and finances.

The question I see on Reddit in Florida is, “Can we just draft one ourselves?” A form leaves out the parts that decide cases. In Weisfeld-Ladd v. Estate of Ladd (Fla. 3d DCA 2006) the agreement never mentioned the elective share, and the waiver survived only because the widow herself testified about what she had understood. A lawyer writes the waiver so that nobody has to testify. A lawyer also checks that two subscribing witnesses sign, which no template can do for you. A prenup review is a flat fee from $750 when the other side already has a draft.

7. How Much Does a Prenup Cost in Florida?

In the Florida market a prenup commonly costs from a couple of thousand dollars to the mid five figures for complex estates, and each person should budget for a lawyer. At this firm a prenup drafted for one spouse is a flat fee from $2,450, a review of an agreement the other side drafted is a flat fee from $750, and a postnuptial agreement drafted for one spouse is a flat fee from $2,950. These fees are honored for 90 days from October 6, 2026. Government costs are additional and passed through at cost.

Set the fee against the stakes. The elective share alone is $240,000 on an $800,000 estate. What a Florida prenup costs explains what moves the number, and whether a prenup is worth it works the arithmetic.

8. Prenup, Postnup and Premarital Agreement: Are They the Same Thing?

Prenup, prenuptial agreement, premarital agreement and antenuptial agreement are four names for one document, signed before the wedding. A postnup, or postnuptial agreement, is the same kind of contract signed after the wedding.

The difference is the test. A postnup is judged under Casto at any date, because the premarital agreement statute covers only agreements signed before marriage. A postnup that waives death-side rights also needs a fair disclosure by each spouse of that spouse’s estate, which the probate statute requires for any agreement signed after the marriage. A postnup is therefore the harder agreement to defend, and the spouses owe each other fair dealing the whole time. Prenup versus postnup compares them, can you get a prenup after marriage answers the question married couples ask, and the postnup guide covers the agreement itself.

Prenup Guides by Situation

• Florida prenuptial agreement, the main guide.
• Do I need a prenup? and how to get a prenup in Florida.
• Second-marriage prenups and prenups for business owners.
• Is an inheritance marital property? and prenups for trust beneficiaries.
• Retirement accounts in a prenup.
• A prenup signed in another state or country, prenups for foreign nationals, for Canadian couples and for K-1 fiancé visas.
• Jewish prenups and a parent’s guide to a child’s prenup.

Frequently Asked Questions

Common Situations

The dentist buying into a practice. A 34-year-old is about to buy a share of a practice for $400,000, and her fiancé carries $90,000 in student loans. Growth in the practice during the marriage would be marital in a divorce. A prenup decides in advance how that growth and the loans are treated.

The divorced father of two. He owns a paid-off condo in Aventura and wants it to go to his daughters. Without a waiver, his new wife would hold homestead rights in the home and a 30 percent claim to the rest. A prenup with a witnessed waiver is how his plan for the condo survives the marriage.

The retired couple with similar means. Both are 68, both own homes and both want the survivor to inherit everything. Florida’s defaults already lean that way, and wills naming each other may do the work. A prenup would change little, and the consult says so.

Sources of Law

• Fla. Stat. §61.079 (Uniform Premarital Agreement Act; definition in (2)(a), formalities in (3), permitted content in (4), effect of marriage in (5), enforcement in (7), limitations in (9), probate code preserved in (10)). Fla. Stat. §61.075(1) (equal-distribution premise).
• Fla. Stat. §732.702 (waiver of spousal rights; two subscribing witnesses; fair disclosure only for agreements signed after marriage); §732.2065 (elective share); §732.401 and Fla. Const. art. X, §4(c) (homestead); §§732.402 and 732.403 (exempt property and family allowance).
• Casto v. Casto, 508 So. 2d 330 (Fla. 1987); Weintraub v. Weintraub, 417 So. 2d 629 (Fla. 1982); Stregack v. Moldofsky, 474 So. 2d 206 (Fla. 1985); City National Bank of Florida v. Tescher, 578 So. 2d 701 (Fla. 1991); Belcher v. Belcher, 271 So. 2d 7 (Fla. 1972).
• Lutgert v. Lutgert, 338 So. 2d 1111 (Fla. 2d DCA 1976); Estate of Sage v. Sage, 515 So. 2d 1324 (Fla. 2d DCA 1987); Estate of Garcia v. Garcia, 399 So. 2d 486 (Fla. 3d DCA 1981); Weisfeld-Ladd v. Estate of Ladd, 920 So. 2d 1148 (Fla. 3d DCA 2006); McNamara v. McNamara, 40 So. 3d 78 (Fla. 5th DCA 2010); Cladis v. Cladis, 512 So. 2d 271 (Fla. 4th DCA 1987); Tenneboe v. Tenneboe, 558 So. 2d 470 (Fla. 4th DCA 1990); Khan v. Khan, 79 So. 3d 99 (Fla. 4th DCA 2012); Kearney v. Kearney, 129 So. 3d 381 (Fla. 1st DCA 2013).
• Statutes and opinions retrieved 2026-10-07.

The Husband Who Tried to Enforce a Prenup He Never Explained

In my practice, the question people ask about a prenup is almost always about divorce, and the case I use to answer it is about a husband who tried to enforce one.

The husband in Weintraub was sued for divorce, and he handed the court an antenuptial agreement to defeat his wife’s claim for alimony. The trial court found that he had never disclosed the extent of his resources before she signed, and that she had no other way of knowing them. The trial court threw the agreement out. The First District agreed in 1981, and the Florida Supreme Court approved the decision in 1982.

The husband made a pointed argument. Florida’s probate statute, adopted in 1974, makes a premarital agreement valid at death without any disclosure. If his wife outlived him, he argued, the agreement would hold, and the same agreement would fail if she filed for divorce, so the rule gave her a reason to divorce him. The Court answered that the probate rule exists because an estate struggles to prove disclosure after the wealthier spouse has died, and that reason is absent in a divorce, where both spouses are alive to testify about what was disclosed.

I have a few take-home points.

The first is that one agreement lives in two courts. The same pages can be enforceable in probate and unenforceable in a divorce, so a client who reads only the probate statute learns half the rule.

The second is that disclosure is cheap on the day of signing and expensive on the day of the divorce. An owner who wants the agreement to hold needs the other person’s signature on a schedule of assets with values, and that schedule costs an afternoon.

Practice pointer. Attach a signed disclosure schedule with dollar values to every prenup, even though the death side does not require one.

Avoid relying on the probate rule that no disclosure is needed. That rule never helped the husband in Weintraub, because the case was a divorce.

An honest limit belongs here. Weintraub was decided before the 2007 statute, and I found no appellate decision that applies the statute’s disclosure test to a newer prenup, so how that test compares with Casto is a reading of the text.

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 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.