Switch to ADA Accessible Theme
Close Menu

How Premarital & Postmarital Agreements Affect Estate Planning in Florida


Many couples use marital agreements to protect their assets in the event of a divorce or death. However, while premarital or postmarital agreements offer a number of benefits during divorce, marital agreements can greatly affect your estate planning.

If you have a premarital or postmarital agreement and are looking to create an estate plan, it is advised to consult with an experienced estate planning attorney to help you understand how your estate plan can complement your existing marital agreement in Florida.

Marital Agreements protect your assets and beneficiaries

A premarital or postmarital agreement and an estate plan have one thing in common: These legal documents can protect your assets and beneficiaries as long as they are properly drafted and executed.  For example, you can safeguard certain types of assets that spouses typically are entitled to under state or federal law and make sure they pass to your intended beneficiaries and not necessarily your spouse.

However, it is vital to keep in mind that marital agreements are handled differently based upon divorce or one of the spouse’s death. Your estate plan can complement your marital agreement when drafted properly.

A spouse’s elective share can be waived through a premarital or postnuptial agreement

In Florida, premarital and postmarital agreements are commonly used by spouses to waive their right to the spousal “elective share.” Pursuant to § 732.201, Florida Statutes, a surviving spouse is entitled to at least 30% of their deceased spouse’s estate. This right is known as the “elective share.”

Marital agreements can be used to limit the rights of a surviving spouse by waiving the elective share.  Important Note: A spouse’s right to elective share may only be waived if you draft a legally binding premarital or postmarital agreement in Florida.

A marital agreement can protect from spousal claims

Without a marital agreement in place, inherited assets may be subject to the surviving spouse’s spousal claims, including the spousal elective share.  There are other claims a spouse can make after a death, such as a Family Allowance during a probate administration, or rights to the homestead property of the deceased spouse.  A Family Allowance is a $18,000 payment to the surviving spouse to provide support during the probate administration.

A valid and enforceable premarital or postmarital agreement can ensure that your assets are protected from spousal claims in the event of divorce and death.

You can protect your business in the short and long-term

If you operate a business in Florida and want to pass it to your children upon your death, a valid marital agreement can protect your business if you get divorced or die.  If your business is considered marital property, it will be subject to Florida’s equitable distribution law. It means that your spouse could end up owning a portion of your business in the event of divorce.

A marital agreement can protect your business in the short- and long-term.  However, it is also advised to have a business succession plan in place to prepare your business to handle unexpected events.  If you have other business partners, you will want a business agreement in place to make sure the business partners do not unintentionally go into business with your spouse upon your death or incapacity.

Schedule a consultation with our St. Petersburg estate planning lawyers at Legacy Protection Lawyers, LLP, to discuss how a marital agreement may affect your estate plan in your particular situation. Call 727-471-5868 for a case review.

Facebook Twitter LinkedIn