Premarital agreements and postnuptial agreements can be useful estate planning tools to preserve a party’s non-marital assets for distribution to a party’s beneficiaries, instead of to the party’s surviving spouse. Premarital agreements (sometimes called “prenuptial agreements” or “antenuptial agreements”) are contracts between prospective spouses made in contemplation of marriage and effective upon the marriage of the parties. Postnuptial agreements are contracts between spouses, setting forth their agreements on issues such as alimony and division of property upon divorce or upon the death of a spouse, and typically become effective upon execution of the agreement by the parties.
Premarital and postnuptial agreements address agreements between the parties, including, but not limited to the following: (i) the parties’ rights, obligations, and/or division of property regarding property owned or which may be acquired by either or both of them, in the event of their divorce, death of one of the parties, or the occurrence or non-occurrence of a specified event; (ii) the right to manage or control property; and (iii) agreements related to the making of a will, trust or other arrangement to carry out the provisions of the premarital agreement. The agreements cannot conflict with Florida law or public policy. The right of a child to support cannot be adversely affected by a premarital or postnuptial agreement. In addition, under Florida law, rights regarding child support, custody and visitation cannot be waived in a premarital or postnuptial agreement.
By using a premarital or postnuptial agreement as part of your estate plan, you can address your and your spouse’s (or prospective spouse’s) agreements on various issues, including, but not limited to, your surviving spouse’s rights (or waiver of rights), upon your death, regarding elective share, intestate share, pretermitted share, homestead, exempt property, family allowance, and preference in appointment as a personal representative of an intestate share. However, a surviving spouse’s waiver (wholly or in partly) of the foregoing rights, either as part of premarital agreement, postnuptial agreement, or other agreement or waiver, must be signed by the waiving party in the presence of two (2) subscribing witnesses.
For example, without a valid and effective premarital or postnuptial agreement, a surviving spouse may have rights to your property pursuant to Florida’s elective share or homestead statute, as follows:
- Under Florida’s elective share statute, a surviving spouse is entitled to receive no less than thirty percent (30%) of the “elective estate” (valued as of the deceased spouse’s date of death), in the place of what the surviving spouse may have been left in the deceased spouse’s Will or deceased spouse’s revocable living trust. The “elective estate” includes, but is not limited to, the following property:
- the decedent’s probate estate;
- the decedent’s protected homestead;
- the decedent’s ownership interest in “Pay on Death”, “Transfer on Death”, or similar co-ownership with right of survivorship accounts;
- the extent of the decedent’s interest in property held as a joint tenancy with right of survivorship or tenancy by the entirety;
- assets in a decedent’s revocable trusts;
net cash surrender value of life insurance policies on decedent’s life; and
- pensions and retirement plans;
- Under Florida’s homestead statute, a surviving spouse is entitled to receive (1) a life estate in the homestead, or (2) in lieu of a life estate, upon the surviving spouse’s election within six (6) months of the decedent’s death, an undivided one-half interest in the homestead as a tenant in common, with the other one-half interest vesting in the decedent’s descendants who are alive at the time of the decedent’s death, per stirpes. (Per stirpes means that if a beneficiary dies before the decedent (in an intestate estate) or testator/testatrix (in an estate where the decedent made a Will), the beneficiary’s share of the inheritance goes to the beneficiary’s heirs (usually, the deceased beneficiary’s children).)
A premarital or postnuptial agreement must be in writing; must describe the consideration (i.e., what was bargained for and exchanged by the parties) for the agreement; must be entered into voluntarily by both parties; and prior to its execution, each party must have exchanged fair and complete financial disclosure of his or her assets to the other party. If the premarital or postnuptial agreement contains agreements regarding the transfer of real estate, then it must also be signed by a party before two (2) witnesses and a notary public. If it contains testamentary clauses, then it must conform to the execution requirements for a Will.
For a premarital agreement, no consideration is required other than the occurrence of the marriage itself. For postnuptial agreements, consideration in support of a valid postnuptial agreement must be more than staying in the marriage. Examples of valid consideration for postnuptial agreements include the following: (i) one spouse’s duty to support the other spouse and the other spouse’s right to compel that support; (ii) mutual promises which encompass various rights or duties of the parties (e.g., release by one spouse in the interest of the other spouse’s estate); or (iii) the mutual cancellation of a previous agreement, such as a prenuptial agreement.
Depending on the specific facts and circumstances, a premarital or postnuptial agreement may be set aside in the following situations:
- if a party did not execute the agreement voluntarily;
- if the agreement was the result of fraud, duress, coercion, or overreaching; or
- if the agreement was unconscionable when it was signed, and before signing, that party,
- was not provided with a fair and reasonable disclosure of the property or financial obligations of the other party;
- Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party; and
- Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.
It is advisable that each party be represented by separate legal counsel regarding the premarital or postnuptial agreement. With respect to premarital agreements, all meetings with the attorneys, negotiations, and execution of the premarital agreement should happen well in advance of the wedding date to make it more difficult for a challenging spouse to claim duress or undue influence.
If you need help with the preparation of a premarital or postnuptial agreement, please contact our office to set up an appointment.