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Florida Probate & Prenuptial Agreements


For a variety of reasons, more and more couples in Florida are executing prenuptial agreements before they marry. Prenuptial agreements, often called ‘prenups,’ can serve as contracts between the spouses, disposing of potential future issues like asset disposition and alimony in the event of a divorce. However, they may also deal with probate-related issues like elective share rights, and can lead to significant dispute during probate, especially if they conflict with a later estate planning instrument like a trust. It is a good idea to consult an experienced attorney if you are in this situation.

Prenups Are Convenient

Quite a lot of latitude is given to prenuptial agreements in Florida; the state allows two people to contract over almost anything (with the exception of future child support, which cannot be contracted away because it is a right that belongs to the child, not the parents), as long as it is not in violation of public policy (nothing that would shock the conscience of the public) or the law. This can include the disposition of property, the right to collect life insurance proceeds in the event of one spouse’s passing, and several other issues.

Prenups are generally seen as convenient and helpful for most couples because unless they are ruled to be unenforceable – if there was fraud or duress that pushed one spouse into executing the agreement – they are a simple and effective way to settle issues that can be incredibly complex. Most of the issues that are dealt with in the average prenup are seen as private business between two people, and unless the agreement tries to deal with an issue expressly reserved to the courts, like child support, it will generally be upheld, preventing potentially time-consuming litigation.

Conflict With Other Instruments

Despite the wide-ranging application of most prenups, it is important to keep in mind that not every asset can be disposed of with one. Very often, prenups will take priority over a will or other estate planning instrument unless someone is able to establish that the prenup was unconscionable or unenforceable. If the prenup is enforceable, it will often be upheld simply because it was executed first. The spouses’ intent is presumed to still be the same unless it can be shown definitively that something has changed.

In some situations, an agreement made between spouses will take priority over a will or a prenup – for example, an agreement for one spouse to waive their elective share or homestead rights (both benefits that might otherwise be due to one spouse upon the passing of the other) may be upheld if worded a specific way. Florida’s prenuptial agreement statute actually holds that it cannot alter the “construction, interpretation, or required formalities under” certain probate agreements, and elective share waivers are one of the most common agreements under this provision. While each case is different, it is crucial to understand which agreement will usually take priority over another.

Call A Florida Estate Planning Attorney

Prenuptial agreements are much more popular than they used to be, and if you and your spouse plan to have one, it is pivotal that you understand its abilities and limitations, especially when it relates to the Florida Probate Code. If you have questions, contacting our Naples estate planning attorneys at the Nici Law Firm can be the first step toward ensuring that all your estate planning questions get answered. To set up a free consultation, either use our web form or call us today at (239) 449-6150.


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