Prenuptial Agreements

A prenuptial agreement is not a bet against your marriage. It is a decision to write your own financial rules instead of accepting the ones the Florida Legislature wrote for you — rules that decide who shares in a business's growth, how retirement accounts are divided, what alimony can look like, and what a surviving spouse can claim from an estate. Done correctly, a Florida prenup is one of the most reliably enforced contracts in family law. Done carelessly, it is an invitation to litigate twice: once over the marriage, and once over the agreement itself.

What a prenup actually does

Marry in Florida without an agreement, and a comprehensive set of default rules attaches to your finances automatically. Under § 61.075, Florida Statutes, a divorce court "must begin with the premise" that everything marital should be divided equally — and "marital" reaches further than most people expect. It includes not only what either spouse acquires during the marriage, but also the appreciation of your separate, premarital property whenever marital labor or marital money contributed to it. Run a company you founded before the wedding, and the value it gains during the marriage — value built by your own work — is generally on the table. Alimony exposure follows its own statute, § 61.08. And at death, a surviving spouse can claim an elective share of 30% of the elective estate, homestead rights, and more, no matter what your will says.

A prenuptial agreement replaces those defaults with a contract. The equitable-distribution statute says so expressly: nonmarital assets include those "excluded from marital assets and liabilities by valid written agreement of the parties." Instead of asking a judge — years from now, in circumstances no one can predict — to decide what is fair, the two of you decide now, in writing, while you are on the same side.

That is the honest case for a prenup. It is not pessimism. It is the same reasoning behind every well-drafted contract: certainty is cheaper than litigation, and the best time to negotiate is before there is a dispute.

The legal framework: § 61.079, Florida Statutes

Florida adopted the Uniform Premarital Agreement Act in 2007, codified at § 61.079, Florida Statutes. It governs premarital agreements executed on or after October 1, 2007, and it sets out a framework that is deliberately friendly to enforcement. The formal requirements are few:

• In writing and signed by both parties. Oral promises are worthless here.
• No consideration required beyond the marriage itself. The agreement "is enforceable without consideration other than the marriage."
• Effective upon marriage. If the wedding never happens, the agreement never takes effect.
• Amendment or revocation only in writing. After the wedding, a prenup "may be amended, revoked, or abandoned only by a written agreement signed by the parties." A handshake cannot undo it — and neither can years of behaving as if it didn't exist.

Note what is missing from that list: witnesses and notarization. For enforcement in a divorce, a signed writing is enough. But there is a trap in that simplicity. To waive a surviving spouse's estate rights — the elective share, homestead, intestate share, family allowance, and exempt property — § 732.702, Florida Statutes requires the waiving party to sign in the presence of two subscribing witnesses. A prenup executed without witnesses can hold up perfectly in a dissolution case and still fail at death, unraveling the estate plan it was supposed to protect. This is why every agreement we prepare is executed with two witnesses and a notary, as standard practice. It costs nothing extra and closes the gap.

What you can decide in advance

Section 61.079(4)(a) allows prospective spouses to contract about, among other things:

• Property — present and future. The statute defines "property" broadly: interests "present or future, legal or equitable, vested or contingent," including "income and earnings, both active and passive." You can fix the rights and obligations in anything either of you owns or will acquire, and control how it is managed, encumbered, or disposed of.
• What happens on separation, dissolution, or death. The disposition of property on any triggering event can be set in advance.
• Alimony. The "establishment, modification, waiver, or elimination of spousal support." Florida permits full alimony waivers in a prenup — subject to two exceptions covered below.
• Life insurance and death benefits. Ownership and disposition of policy proceeds can be locked in — a common tool for guaranteeing a support floor or protecting children of a prior marriage.
• Wills, trusts, and estate coordination. The agreement can require the making of a will or trust to carry out its terms, and can waive the survivor's statutory estate rights (with the witness formalities noted above).
• Choice of law. Which state's law governs construction of the agreement.
• Anything else not in violation of public policy or criminal law.

One point deserves emphasis, because it is where fortunes actually change hands. In Hahamovitch v. Hahamovitch (Fla. 2015), the Florida Supreme Court held that a broad, well-drafted waiver — each spouse disclaiming all rights and claims in property titled in the other's name — reaches the appreciation of separate property during the marriage, even appreciation attributable to marital labor or funds, and assets acquired in one spouse's sole name during the marriage. Those are precisely the assets § 61.075 would otherwise sweep into the marital estate. The lesson cuts both ways: broad waivers are enforced as written, so the drafting — every clause of it — matters enormously, whichever side of the table you are on.

What a prenup cannot do

Florida draws firm lines, and an agreement that ignores them invites a fight over severability at exactly the wrong time:

• Children are off the table. "The right of a child to support may not be adversely affected by a premarital agreement" — § 61.079(4)(b). The same is true of parental responsibility and time-sharing: custody is decided by the court under the best-interests standard, based on circumstances as they exist at the time, not on what two adults agreed before the child was born.
• Temporary support and fees during a divorce cannot be waived. Under Belcher v. Belcher (Fla. 1972), the obligation of support while the marriage still legally exists — including temporary alimony, suit money, and temporary attorney's fees while a dissolution is pending — cannot be contracted away in advance. Florida courts continue to strike these waivers as against public policy. A well-drafted agreement anticipates this rather than pretending otherwise.
• The public-assistance safety valve. If an alimony waiver would leave one spouse eligible for public assistance at separation or dissolution, § 61.079(7)(b) lets the court order support "to the extent necessary" to avoid that eligibility, notwithstanding the agreement.
• Lifestyle clauses are shaky ground. Provisions penalizing infidelity or regulating personal conduct are of doubtful enforceability in Florida and can complicate an otherwise clean agreement. We counsel clients candidly about what such clauses are — and are not — worth.

By contrast, a provision awarding prevailing-party attorney's fees in litigation over the validity or enforcement of the prenup itself is enforceable under Lashkajani v. Lashkajani (Fla. 2005) — a useful deterrent against opportunistic challenges, and a clause most form agreements miss.

What makes a prenup enforceable — and what gets one thrown out

Under § 61.079(7), a premarital agreement is unenforceable only if the challenging spouse proves one of three things:

• The agreement was not signed voluntarily;
• It was the product of fraud, duress, coercion, or overreaching; or
• It was unconscionable when executed — and the challenger received no fair and reasonable financial disclosure, and never waived disclosure in writing, and had no adequate knowledge of the other party's finances. All three, together. A valid written disclosure waiver, standing alone, closes this door.

Unconscionability is decided by the judge as a matter of law, and the burden stays on the spouse attacking the agreement throughout. The Florida Supreme Court's long-standing rule in Casto v. Casto (Fla. 1987) still frames the analysis: an agreement is not set aside merely because one party "made a bad bargain." Lopsided is legal. What is not legal is procured.

The reported cases teach exactly where agreements die, and it is almost never the substance — it is the process:

• Springing it on the eve of the wedding. In Hjortaas v. McCabe (Fla. 2d DCA 1995), the bride first saw the agreement two days before the ceremony, with no financial disclosure; it was set aside. In Ziegler v. Natera (Fla. 3d DCA 2019), an unrepresented, pregnant fiancée signed the day before the wedding after promised disclosures never arrived; invalidation affirmed. In Bates v. Bates (Fla. 3d DCA 2021), a day-before signing by an 18-year-old under immigration-related pressure was struck for coercion.
• Contrast the agreements that survive. In Waton v. Waton (Fla. 4th DCA 2004), the agreement was signed two weeks before the wedding — but the terms had been discussed for months, an asset list was provided, and both parties had independent counsel. Upheld. In Francavilla v. Francavilla (Fla. 4th DCA 2007), disclosure that conveyed a "general and approximate" picture of net worth was sufficient. Upheld.

The pattern is unmistakable: time, disclosure, counsel, and a paper trail. Insisting on the agreement as a condition of marriage is not duress — Florida courts have said so plainly. Ambushing an unrepresented fiancé(e) days before a wedding, with finances hidden, is how a seven-figure agreement becomes a piece of paper.

Who should seriously consider a prenup

Business owners and professional practices

Without an agreement, the marital-labor appreciation of your company is divisible — which in practice means forensic accountants, dueling valuation experts, discovery into your books, and sometimes a court-ordered buyout funded by the business itself. A prenup can keep the company, its appreciation, and its income stream out of the marital estate entirely. If you have partners or investors, they have a stake in this too; many shareholder and operating agreements now expect it.

Second marriages and blended families

If you intend for your children — not your new spouse's estate — to inherit what you built, a prenup coordinated with your estate plan is the mechanism. Without a § 732.702-compliant waiver, a surviving spouse can claim the 30% elective share and homestead rights regardless of your will, displacing the plan you paid to have drafted.

Disparate wealth or income

Where one party brings substantially more into the marriage — or will predictably earn substantially more — the agreement converts an open-ended future dispute into defined terms both parties accepted with eyes open.

Inheritances and family wealth

An expected inheritance or an interest in a family business or trust is exactly the kind of asset that commingling quietly converts into marital property. A prenup builds the fence before the confusion starts — and parents funding a family enterprise increasingly ask for it.

High earners

Florida's 2023 alimony reform eliminated permanent alimony, but durational alimony remains — up to 35% of the difference between the parties' net incomes, for up to 75% of the length of a long marriage. A prenup replaces that exposure with numbers you chose.

The spouse stepping back from a career

Prenups are not only shields for the moneyed spouse. For a partner leaving a career to raise children, an agreement can guarantee a support floor, define property rights, and remove the fear of starting over with nothing — protection Florida's discretionary standards cannot promise anyone.

Significant debt on either side

Student loans, business debt, guarantees: an agreement can allocate liabilities so one spouse's obligations do not become the other's problem.

The process — and why timing is the whole game

The case law above is a drafting manual in reverse. We follow it forward:

• Start four to six months before the wedding. Florida imposes no statutory waiting period — but nearly every successful challenge involves a compressed timeline. Raising the subject early is both kinder and safer.
• Independent counsel on each side. Not legally required — and under Casto, bad legal advice is not by itself a ground to vacate — but separate representation is the single strongest answer to a later claim of involuntariness or overreaching. If your fiancé(e) declines counsel, we document the advice and the declination in writing.
• Full financial disclosure, attached as exhibits. Sworn schedules of assets, liabilities, and income — with statements and, where warranted, valuations. The statute permits a written waiver of disclosure; we rarely recommend relying on one. Disclosure is cheap. Litigating its absence is not.
• Real negotiation, documented. Drafts exchanged, terms actually discussed, changes made. An agreement with fingerprints from both sides is a very hard agreement to attack.
• Sign at least 30 days before the wedding — with two subscribing witnesses and a notary, so the agreement works in a divorce court and a probate court.

What a prenup costs in Orlando

Less than almost any alternative. In the Central Florida market, straightforward prenuptial agreements are commonly in the range of $1,500 to $2,500; agreements where both parties are separately represented and terms are genuinely negotiated typically run $2,500 to $5,000 in combined fees; and agreements involving businesses, professional practices, or substantial estates cost more, driven mostly by valuation and disclosure work. Every engagement here is quoted individually after a consultation — but for perspective, a single contested business-valuation fight in a divorce can cost more than every prenup this firm will draft this year, combined. The agreement is the cheap part. Its absence is what gets expensive.

Drafting, reviewing, negotiating — and litigating them

Before law school, Michael Mackhanlall earned a business degree, held securities licenses, and worked in investment banking. That background matters here more than almost anywhere else in family law, because a prenuptial agreement is a financial instrument: it has to be built around a real balance sheet — entity structures, equity compensation, retirement assets, contingent interests — and drafted for the day someone pays a lawyer to find its weaknesses.

The firm handles every posture: drafting your agreement; reviewing and negotiating the one you've been handed (being the second lawyer into the deal is often where the most value is added); amending an existing agreement as circumstances change; and, when a marriage does end, enforcing a sound agreement — or challenging an unsound one — in litigation. We draft as if we will someday have to defend the document in court, because sometimes we do.

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This page describes Florida law in general terms as of its last update and is not legal advice about any specific situation. Statutes cited include §§ 61.075, 61.079, 61.08, and 732.702, Florida Statutes. Court decisions are summarized; outcomes always depend on specific facts.