Prenuptial Agreements, often called prenups, are a very powerful financial planning tool. Prenuptial agreements are contracts akin to insurance policies with a one-time premium. The prenup can protect your assets and your income in the case of a divorce. But it can also protect your estate plan, especially in second marriage situations where there are children from a previous marriage.
For Divorce planning, a prenuptial agreement can insulate the monied spouse from alimony altogether, and it can restrict what is considered marital property to be divided upon divorce. The prenup can be written such that only assets held in joint names will be marital assets to be equally divided in a divorce. It can protect your retirement from division even if you contribute to that retirement account during your marriage. And if you own real estate prior to the marriage, it can eliminate the division of the appreciation in value of your pre-martial real estate, even when the mortgage was paid off with your income or marital funds during the marriage. The prenup can even address how soon the non-titled spouse must move out of the non-marital residence after a divorce is filed. A prenup cannot make binding agreements about current or future children. Courts are not bound by any aspirational language that might be included in a prenup about how the future spouses will have equal time-sharing, shared custody, or any other child-related issues. Courts must make those decisions at the time the parties are divorcing as to what is in the best interests of the children at that time.
For Estate planning, a prenuptial agreement can protect the monied spouse from Florida’s inheritance laws which would otherwise prevent a person from completely disinheriting their spouse. Florida law provides the widow or widower a 30% share of their spouse’s estate, regardless of what the will says. Of course, you are free to leave more than 30% to your spouse, but without a prenuptial agreement (or some other valid waiver, e.g., a postnuptial agreement) you cannot leave less than 30%. Revocable trusts do not protect your assets from your spouse’s inheritance rights of elective share.
For the individual whose estate plan has already accounted for children (and perhaps grandchildren or even great-grandchildren) from a previous marriage, this estate planning tool of waiver of this elective share can be critical to seeing that your final estate plan takes care of those for whom you most want to provide, in the percentages that you alone determine.
Prenuptial Agreements can save you hundreds of thousands of dollars (or more) over the life of the agreement. If you are planning on getting married, you should consult with an attorney well in advance of the planned wedding to discuss your planning needs. Prenuptial agreements should never be executed under duress, and that includes being negotiated and signed at the eleventh hour before the wedding. Florida law has many important requirements that must be followed for the prenuptial agreement to be upheld in Court. This is not the time to print a form off the internet. This is the time for expert professional help. Call Nancy K. Brodzki, Esq., Florida Bar Board Certified Marital & Family Law attorney, at 954-932-8300 for your confidential appointment today.