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Can My Prenup Affect My Estate Planning?


Most of the time, a prenuptial agreement is thought of as a tool for affianced couples to establish the way property should be disposed of in the event of a divorce. However, in Florida, the laws are written in such a way that several different estate planning issues can also be dealt with in a prenup. It may not always be the best way for every couple, but it can be extremely helpful for some who have estate planning concerns. Consulting an experienced attorney is a good idea for both estate planning and to draw up a prenup, to make sure that your rights are protected either way.

Must Ensure Enforceability

First and foremost, a prenuptial agreement must be enforceable under Florida law, before it can be used to establish bequests in your estate planning. There are very few restrictions on what two people can put in a prenup; the only real prohibition is against establishing rules for child support (the right of a child to support belongs to the child, and thus, the future parents cannot contract it away). Otherwise, the law is fairly permissive – it states explicitly that the parties to a prenup have the right to dispose of property upon death or divorce.

Similarly, there are only a few ways that a prenup can be ruled unenforceable. Fraud or duress are the major reasons for which a challenge can be mounted. In order to have an enforceable prenup, both spouses must have access to the other’s full financial picture, as well as time to properly evaluate that disclosure. If one spouse is only given hours or days to review and sign the agreement, it can be implied that the other is not acting in good faith, which can be a problem. If either of these happens in your case, and your prenup is ruled unenforceable, any bequests in the agreement automatically fail.

Keeps Property Decisions In Your Hands

The major way that a prenup is used in estate planning is to preserve the “nonmarital” property that each spouse might bring to the marriage or acquire during that period, especially if the spouse has any beneficiaries outside of your marriage – for example, children from a previous relationship. This matters especially because then, the decision as to who gets your assets is left up to you and your spouse, rather than up to Florida’s probate laws.

For example, Florida’s elective share statute grants your surviving spouse a share of your estate, though they are not required to accept it. This means that at least 30 percent of your estate will be spoken for – but if your prenuptial agreement reserves a share for, say, a former spouse, the elective share will come out of other assets in your estate. Both spouses will be able to receive your intended bequests, instead of one possibly being left out due to a lack of assets remaining in your estate.

Contact A Naples Estate Planning Attorney

If you have questions, concerns or just want to set up a complimentary consultation to discuss your personal legal issues in a confidential setting, contact James R. Nici, the Managing Partner of Nici Law Firm, a Naples estate planning attorney with almost 30 years of legal experience.  This may be the first step toward ensuring all is how you want it to be going forward. Contact our offices today via our website, or on the telephone at 239-449-6150, to schedule your complimentary consultation.


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