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How Premarital Agreements Affect Estate Planning


While marriage stands for the promise of spending the rest of your life with your partner, there is the unfortunate reality that half of all marriages end in divorce. Living in Florida increases those odds, as the Centers for Disease Control and Prevention reports it has the seventh-highest divorce rate in the nation. On top of that, the majority of the Florida population is over the age of 65, skyrocketing the chance of a second marriage. However, there you can find comfort and more predictability by adding the right premarital agreements and protect your estate.

Prenuptial Agreements Don’t Have to Mean Divorce

When people think of prenuptial agreements (or prenups), it’s easy to think of a lack of trust or preparing for the worst. But in reality, it can really help you prepare for the best and make sure all of your beneficiaries are prepared in the event of your death or the death of your spouse. Florida law drastically changes estate planning because unless you have it otherwise in writing, many assets become marital property. That means you share responsibility of money, property, and benefits like retirement accounts, with your spouse. So, where does the prenuptial agreement come in?

Protection of Your Assets

Rather than allowing all of your assets to become marital property, prenuptial agreements allow you to separate which property is considered shared. This prevents your assets from being classified as joint property when a spouse passes away. It is exceptionally helpful for anyone entering into their second marriage with a significant amount of assets. By creating a prenup, you can divide what property goes to whom, whether they are from your previous marriage, your current marriage, or any other friends and family.

A Spouse’s Rights

Other misconceptions about prenup agreements include creating the agreement because you don’t want to leave all of your assets to your spouse. However, the surviving spouse has many rights under Florida law. Some of those include:

  1. Homestead: In Florida, you cannot distribute your assets freely if you have a surviving spouse. This one is rather complex depending on whether you leave behind a minor child. However if you pass without a prenuptial agreement and your spouse is your sole survivor, the property passes over with a life estate to the spouse. That means they can live on your property for the rest of their life, but have to pay all the necessary taxes and insurance.
  2. Spousal Share: The surviving spouse will receive an intestate share of assets acquired before and during the marriage. However, Florida law allows you to waive that right in a prenuptial agreement.
  3. Elective Share: You cannot cut your spouse out of receiving a share when you die. Florida law mandates the surviving spouse gets a minimum of 30% of the estate’s value.

A Probate Lawyer Is Key

The bottom line is prenuptial agreements can save your spouse a lot of headache in the eventuality of your death. However, the agreements can be complex and will need critical guidance from a lawyer. Before your marriage, the attorneys at Legacy Protection Lawyers, LLP will take a comprehensive look at your assets to create the most effective premarital agreement for you. Call our St. Petersburg offices at 727-471-5868 or contact us online to schedule a consultation today.





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