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Prenuptial, Postnuptial, and Probate

This article is intended for informational purposes only and is not intended to be legal advice.


Under Florida Statute 61.079(2)(a), a premarital agreement is “an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.” Florida Statute 61.079(2)(b) defines property as “includ[ing], but [not] limited to, an interest, present or future, legal or equitable, vested or contingent, in real or personal property, tangible or intangible, including income and earnings, both active and passive.” This may sound like it encompasses the area of Family Law solely, however a premarital agreement may also be an important piece to an estate plan.


A premarital agreement, also known as a prenuptial agreement, allows individuals contemplating marriage to enter a legally binding agreement in which the parties may agree to most anything involving property rights, such as how assets would be dispersed upon divorce or waivers of alimony. Parties may also agree to waive statutory rights, including waivers of rights to inheritance. Postnuptial agreements which are entered into after marriage are also legally binding agreements which allow for the same agreements to property rights and waivers of statutory rights.


How Do These Nuptial Agreements Relate to Estate Planning?


Under Florida Statute 732.702, parties may agree to waive the right “of a surviving spouse to receive an elective share, intestate share, pretermitted share, homestead, exempt property, family allowance, and preference in appointment of Personal Representative of an intestate estate” in either a prenuptial or postnuptial agreement.”


In other words, parties who have entered into a prenuptial or postnuptial agreement may waive any number of statutory rights that they would otherwise be entitled to as a surviving spouse. When contemplating entering into a prenuptial or postnuptial agreement, it is important to update each party's estate planning documents to ensure that the agreement and the estate plan do not conflict with each other.


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