A Florida prenup can reach further than most people expect — property, alimony, life insurance, what happens at death, even who keeps the dog — and yet a handful of subjects are strictly off-limits, and a few more are technically permitted but dangerous to draft casually. Here is the full map of what section 61.079 lets you put in a premarital agreement, what it forbids, and where the traps are.
What the statute expressly permits
Section 61.079(4)(a), Florida Statutes, lists the subjects prospective spouses may contract about: the rights and obligations of each in any property, whenever and wherever acquired; the right to buy, sell, use, transfer, encumber, or otherwise manage and control property; the disposition of property upon separation, dissolution, death, or any other event; the establishment, modification, waiver, or elimination of spousal support; the making of a will, trust, or other arrangement to carry out the agreement; ownership rights in and disposition of the death benefit from a life insurance policy; the choice of law governing the construction of the agreement; and any other matter, including personal rights and obligations, not in violation of either Florida public policy or criminal law. The catch-all at the end is broad — but it is bounded by two hard limits discussed below, and by the practical rule that every exotic clause you add gives a future challenger one more target.
The property architecture: where prenups earn their keep
Without an agreement, Florida divides a divorcing couple's world under the equitable distribution statute: non-marital property stays with its owner, marital property — including the appreciation of non-marital assets attributable to marital effort or funds, and assets commingled beyond tracing — gets divided. A prenup lets you redraw those default lines in advance. The provisions that do the heaviest lifting in our practice: defining separate property and, critically, keeping its appreciation and income separate even if the owner works in the business (the default rule pulls active appreciation into the marital estate); pre-agreeing the treatment of the marital home, including a home one spouse brings to the marriage that the couple later improves; commingling rules — what happens when separate funds pass through a joint account, so an accident of banking doesn't convert a fortune; treatment of retirement contributions and growth during the marriage; and a valuation method for any business interest, agreed while everyone still likes each other. These clauses convert the most expensive fights in divorce litigation into arithmetic.
Alimony: waivable, with two asterisks
Florida expressly allows a prenup to modify or eliminate spousal support — a waiver that became more predictable after the 2023 reform (ch. 2023-315) replaced permanent alimony with durational forms and capped their length. But two limits survive. First, the statute itself provides that if a support waiver leaves a spouse eligible for public assistance at the time of the divorce, a court may require the other spouse to provide support to the extent necessary to avoid that eligibility — you cannot contract your spouse onto the safety net. Second, Florida case law beginning with Belcher v. Belcher holds that support and attorney's fees while the marriage still exists — temporary, suit-money obligations during a pending dissolution — cannot be cut off in advance by contract. A prenup that purports to waive "any and all support of every kind including temporary support" overreaches; a well-drafted one waives what is waivable and stays silent, deliberately, about the rest. This is a place where out-of-state templates fail Florida clients constantly.
Death provisions: the estate-planning half of the prenup
A prenup is as much an estate-planning instrument as a divorce instrument. Florida gives a surviving spouse a bundle of rights the deceased spouse's will cannot defeat — a 30% elective share of the elective estate, homestead protections, exempt property, family allowance, and an intestate or pretermitted share. Section 732.702 allows all of these to be waived before marriage, and (a genuine oddity) requires no financial disclosure for a premarital waiver — though we disclose anyway, because the same schedules must survive section 61.079 scrutiny on the divorce side. The formality that matters: a 732.702 waiver must be signed in the presence of two subscribing witnesses — a stricter requirement than the prenup statute itself imposes, and the reason our signing ceremonies are witnessed even though section 61.079 asks only for two signatures. Common uses: protecting children of a first marriage, keeping a family business out of the elective estate, and coordinating with trusts. The prenup can also affirmatively promise benefits at death — a life-insurance obligation, a right to occupy the home — that the survivor could not otherwise claim.
One federal override sits on top of all of this: survivor benefits under ERISA-qualified retirement plans (most employer 401(k)s and pensions) can only be waived by a spouse, on plan-specific forms, after the wedding. The prenup's job is to obligate each spouse to sign those consents promptly after marriage — and your lawyer's job is to make sure it actually happens. A prenup that "waives all retirement rights" without the follow-through leaves the plan payable to the survivor no matter what the contract says.
The absolute no-go zones
Two subjects are beyond the reach of any Florida premarital agreement. Child support: section 61.079(4)(b) states flatly that the right of a child to support may not be adversely affected — no caps, no waivers, no formulas that undercut the guidelines; support belongs to the child, not the parents. Parental responsibility and time-sharing: custody is decided by the court at the time of the case under the best-interests standard; a contract signed before the children existed cannot bind that judgment. Drafting either subject into a prenup does not merely void the clause — it signals overreaching and invites a court to read the whole document skeptically. A severability clause limits the damage; not writing the clause avoids it.
Permitted but handle with care
Lifestyle clauses — infidelity penalties, weight clauses, in-law visit quotas — technically live under the "any other matter" catch-all, and Florida courts have shown little appetite for enforcing them; a fault-based financial penalty also sits uneasily with Florida's no-fault divorce policy. We rarely recommend them: they add attack surface and emotional cost for terms unlikely to pay off. Attorney's-fee provisions deserve precision: the Florida Supreme Court in Lashkajani v. Lashkajani enforced prevailing-party fee clauses for litigation over the validity and enforcement of the prenup itself — a clause we include, because it makes challenging a solid agreement expensive — while temporary fees during a dissolution remain non-waivable per Belcher. Pets: Florida treats animals as property, so a prenup can decide who keeps the dog, and courts will honor it as a property term. Confidentiality and non-disparagement: enforceable as contract terms and increasingly requested by clients with public profiles or businesses; draft them with remedies that are realistic. Sunset and milestone provisions: an agreement can phase itself out — alimony waivers that soften after ten years, a separate-property definition that gradually shares appreciation — often the key to getting a fair deal both sides will sign.
Choice of law: quietly one of the most important clauses
Section 61.079 lets the parties choose the law governing construction of their agreement. For a couple marrying in Florida and likely to stay, Florida law is the natural anchor — and if you later move, the clause travels with you, giving the new state's court a framework rather than a vacuum. We pair it with a severability clause and, where the facts justify it, a forum provision. The combination is what lets an agreement signed in Orlando in 2026 govern a divorce filed somewhere else in 2046 — the long-game problem addressed in depth on our enforcement page.
Common questions
Yes — this is one of the most common and most enforceable uses. Without an agreement, appreciation of your business during the marriage attributable to your own labor or marital funds is generally a marital asset. A prenup can define the business, its appreciation, its income, and anything acquired with that income as separate property, and fix the valuation method if any part ever must be divided. Pair it with clean bookkeeping; a contract cannot save a business whose owner pays household bills from the operating account for a decade.
Prospective alimony after divorce — yes, Florida permits full waiver, and the 2023 statute's durational framework makes the trade well-defined. The limits: temporary support and fees while a case is pending cannot be waived in advance, and a waiver that would leave a spouse on public assistance can be overridden to that extent. Many couples land between the extremes: a formula tied to length of the marriage, which is usually easier to enforce and to live with.
Extensively. Waivers of elective share, homestead, exempt property, and intestate rights are standard; affirmative promises — life insurance, a right to remain in the home, specific bequests — are enforceable contract terms. Two cautions: estate waivers carry the two-witness execution formality of section 732.702, and ERISA retirement survivor benefits need post-wedding spousal consents on plan forms. The prenup should be drafted alongside your will and trust, not instead of them.
Treat them as unreliable. They nominally fit the statute's catch-all, but a financial penalty for marital fault runs against the grain of Florida's no-fault system, proof turns ugly fast, and courts have little enthusiasm for refereeing them. If accountability matters to you, there are usually cleaner contractual ways to express it — and if the clause matters more than the marriage math, that is a conversation to have before signing anything.
A properly drafted agreement includes a severability clause: the offending term falls, the rest stands. That works when the invalid term is peripheral — a lifestyle clause, an overbroad fee waiver. It works far less well when the defect infects the whole document, like fraudulent disclosure or duress at signing, which are grounds to set aside the agreement entirely. Severability is a seatbelt, not a substitute for drafting within the law's limits.
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General information about Florida law — not legal advice, and no attorney-client relationship is created by reading it. Authorities referenced include §§ 61.079, 61.08, 732.702, Fla. Stat., ch. 2023-315, Laws of Fla., Belcher v. Belcher, 271 So. 2d 7 (Fla. 1972), and Lashkajani v. Lashkajani, 911 So. 2d 1154 (Fla. 2005) (verified July 2026). Every situation turns on its own facts.