First Comes Love, Then Comes a Prenup

You are engaged! Congratulations! You and your soon-to-be spouse have endless wedding details to plan – your venue, guests, flowers – the list goes on. While planning your wedding is fun (and stressful), planning your marriage is essential. A prenuptial agreement may not be as exciting as your cake or honeymoon; however, it can be an excellent opportunity for you and your soon-to-be-spouse to plan your future together.

A prenuptial agreement (or a prenup) is a written contract signed by the parties intending to get married before the marriage. A prenup usually identifies all of the property each party owns (as well as any debts) and states what each party’s property rights will be after the marriage. Absent a prenuptial agreement, your property rights after your marriage will be governed by Florida law.

If you are considering a prenuptial agreement, it is important for you to understand all of the rights to which a spouse is entitled under Florida law in the event of a divorce and upon the death of your spouse.

Rights upon Divorce: Absent a prenuptial agreement, Florida law provides for an equitable division and distribution of property in the event of a divorce.

The starting point in a divorce proceeding is that all marital property should be split in equal shares between the spouses; however, those shares can be altered by a judge to ensure equitable treatment among the parties. The division is determined on a factual basis and varies with the circumstances involved in the marriage. Florida law does indicate that property acquired before the marriage and any inheritance should be treated as non-marital property in the event of a divorce; however, the determination of what constitutes marital and non-marital property often becomes less clear-cut over the course of a marriage. Further, because of the ability of the court to make equitable adjustments, a spouse may be entitled to an interest in property acquired before marriage, to earnings and appreciation in property acquired during the marriage, and wages received during the marriage.

A spouse may also assert claims to alimony, maintenance, and support in a divorce proceeding.

You and your soon-to-be spouse can waive any or all of the foregoing rights which are available to a spouse in the event of a divorce under a valid prenuptial agreement. A prenup can preserve your wants, needs, and individual expectations as well as prevent any surprises in a divorce proceeding.

Rights upon Death: Under Florida law, absent a prenuptial agreement, a surviving spouse has certain rights to his or her deceased spouse’s estate.

First, with regard to homestead rights, it is not possible for one spouse to devise his or her homestead property to anyone other than his or her spouse. Further, if devised to a spouse, the devise must be of the entire interest in the property. If it is devised improperly, either to someone other than the surviving spouse or with less than 100% passing to that spouse (if there are no minor children), the attempted transfer would be deemed an invalid devise of homestead. As such, it would be inherited pursuant to a special provision of the Florida Statutes. Under this statute, the surviving spouse would inherit a life estate in such property, which is essentially the right to live there for the remainder of his or her life, or in lieu of receiving a life estate interest, a surviving spouse has the option of electing to receive an undivided one-half interest in the real property as a tenant-in-common with the deceased spouse’s surviving children (or other heirs) owning the remaining one-half.

In addition to homestead rights, a surviving spouse would have the ability to file for an elective share against his or her deceased spouse’s estate if no prenuptial agreement existed. The elective share amount is equal to 30% of a deceased spouse’s elective estate, which would be distributed directly to the surviving spouse, or potentially continued in a trust for his or her benefit for his or her remaining lifetime. In general, the elective estate includes all assets in which the deceased spouse held an interest, including homestead, jointly held assets, revocable trust assets, probate assets, retirement plans, the cash surrender value of life insurance, and inherited wealth owned in the deceased spouse’s name. Any assets devised to the surviving spouse would be applied against the elective amount and the assets of the deceased spouse’s estate remaining after satisfaction of the elective share would pass in accordance with his or her estate plan.

A surviving spouse also has a right to certain exempt property interests (in general, up to $20,000 worth of furniture and furnishings, two cars in the deceased spouse’s name, any interest in qualified tuition programs, and certain benefits provided to teachers in Florida) and a family allowance (a sum of money up to an amount of $18,000 issued to the surviving spouse by the probate court in its discretion). In addition, a surviving spouse is entitled to preference in serving as personal representative of the deceased spouse’s estate. From a federal standpoint, a surviving spouse is entitled to the benefits available under a deceased spouse’s pension plan and 401(k) plan.

You and your soon-to-be spouse can waive any or all of the foregoing rights which are available to a surviving spouse under a valid prenuptial agreement. A prenup can be especially helpful for couples who are coming into a marriage with children from a prior marriage and want to protect their respective children’s inheritance upon their deaths.

It is essential that you and your soon-to-be-spouse plan your marriage together; otherwise, Florida law will govern the future of your relationship. Before you hire a wedding planner, please contact an estate planner at our office to discuss a prenuptial agreement. You should not wait until the last minute because a valid prenup requires time and careful planning.

By: Aimee K. Arce, Esq.