How a Prenuptial Agreement Can Protect You

A Prenuptial Agreement (Prenup) is a contract between two persons who intend to marry one another and is used to keep some (or all) of assets separate after marriage, in the event of divorce and death.  It’s a very important document in Florida since it’s a way to preserve assets for the benefit of persons other than a spouse - such as adult children from a prior marriage or relationship. Without a Prenup, each spouse’s assets upon death and/or divorce, will be distributed according to Florida law, which oftentimes is not at all what they might choose.  With a Prenup, the couple are each able to decide how to distribute the assets between themselves as well as to other beneficiaries, upon death and/or in the event of a divorce.

On marriage each spouse assumes legal rights and responsibilities, many of which they may have no knowledge.  Among those is a right found in the Florida Constitution, which protects each spouse’s homestead from forced sale by a creditor.  This is so that a person won’t be without shelter. Florida has one of the strictest protections available.  This means, if you own your home as the “sole owner” on the deed, and then marry, your new spouse acquires a right in that home, unless you both enter into a Prenuptial Agreement that changes that right.  Also, without a Prenuptial Agreement, your new spouse’s signature is required in any transfer of that property even if your spouse is not in any way an owner.

In addition to rights in a deceased spouse’s homestead, a new spouse also acquires the right to elect to receive 30% of the deceased spouse’s “Elective Estate,” which includes both probate and non-probate assets. Practically, this means that even if you have a Last Will or a Revocable Trust in which you left your entire estate to your children, your spouse could elect to take 30% first.  If your Last Will is dated before the marriage, your spouse may receive up an even larger percentage of your estate. 

The surviving spouse has the right to claim the greater of the two, as between the Elective Share or "Pretermitted" Spouse Share.  On the other hand, if you made a Will and/or Trust after you married, but still failed to provide for your surviving spouse when devising your assets including your homestead (even if purchased by you before marriage to your surviving spouse), then your surviving spouse will have acquired homestead rights for life and may also elect 30% of your elective estate.

In addition, a surviving spouse also has the right to claim some property and also a family allowance. The property right entitles the surviving spouse to furniture, furnishings and appliances from the residence of up to $10,000, any automobiles held in the name of the deceased spouse being used by immediate family, and the deceased spouse’s interest in certain contracts.  The family allowance right gives the surviving spouse a claim for up to $18,000).  Lastly, a surviving spouse is also given preference in appointment as personal representative of an intestate estate even when this might not have been the deceased spouse’s choice. 

  A properly drafted Prenuptial Agreement that includes a Waiver of Homestead Rights and Elective Share Rights, together with a properly drafted Estate Plan are vehicles that will protect your estate for the beneficiaries of your choice after your death, enabling your assets to be distributed in accordance with your wishes.