Are Prenuptial Agreements Just for the Rich & Famous?

Written by Natalie C. Lashway | nlashway@farr.com | Download
Attorney Natalie C. Lashway - Marital & Family Law, Divorce and Litigation

Attorney Natalie C. Lashway
Natalie’s practice focuses on marital & family law, divorce and civil litigation.

It is commonly believed that only wealthy individuals need prenuptial agreements. On the contrary, a prenuptial agreement may prove valuable even when assets are minimal.

What Can a Prenuptial Agreement Do?

Before diving into how a prenuptial agreement may be beneficial, one should know what a prenuptial agreement can do. For instance, prenuptial agreements can:

  • Preserve assets earned before marriage
  • Protect separate property
  • Define marital property
  • Waive alimony
  • Support estate planning goals

A Prenuptial Agreement to Limit Risk of Divorce

Without a prenuptial agreement, Florida law dictates what happens upon a dissolution of marriage. Florida law provides that each spouse is entitled to approximately 50% of all marital assets. Marital assets are generally those assets that are earned or acquired during the marriage, but can also include any increase in value of a nonmarital asset or any nonmarital asset that is commingled with a marital asset. Simply keeping assets separately titled does not protect them from being considered a marital asset. In addition to equitable distribution, Florida law allows for an award of alimony depending on the circumstances of the case.

A prenuptial agreement can be used to eliminate equitable distribution, define property rights and waive alimony in case of dissolution of marriage. A prenuptial agreement can therefore provide predictability in case of a dissolution of marriage.

A Prenuptial Agreement as an Effective Estate Planning Tool

Upon the death of a married person who does not have a prenuptial agreement, Florida law provides for certain rights for the surviving spouse. For example, the surviving spouse is entitled, among other things, to approximately one-third of the decedent’s estate and has rights in the decedent’s homestead. These rights cannot be changed by the will or trust of the decedent, but only by a marital agreement like a prenuptial agreement.

A prenuptial agreement may be especially suitable for a person with a child from another relationship who desires to pass on certain assets to that child upon their death. For example, with a prenuptial agreement, a married person may not be obligated to leave one-third of her estate to her spouse, but can instead leave as much of her estate as she chooses to her children.

Is a Prenuptial Agreement Right for You?

People getting married are faced with two options:

  • Enter into the marriage subject to the laws that govern the marriage, however those laws may change in the future; or
  • Enter into the marriage with a prenuptial agreement and choose their own rules to govern their particular relationship.

Whichever choice a marrying person makes, a qualified family law attorney can advise of the consequences and prepare a prenuptial agreement if desired.  The preparation of a prenuptial agreement is critical and should only be done by an experienced lawyer.


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