Marriage is a wonderful institution. It speaks of love, devotion, and commitment.
Sadly, statistics indicate that almost half (50%) of all marriages in America will end in separation or divorce. And, according to research, 41% of all first-time marriages end in divorce.
In recognition of the realities of life, many couples use prenuptial agreements (often referred to as a “prenup”) to keep their property separate and/or to make the division of property in the event of divorce far easier.
What is a Prenuptial Agreement and What Does it Do?
Prenuptial agreements (i.e., agreements made before marriage – those made after marriage are called “postnuptial agreements”) are legal written agreements made between spouses regarding how certain issues, like alimony, cash accounts, property division, and financial obligations, will be handled in the event of a divorce. (Note: you cannot agree to child support payments or waive child support payments in a prenuptial agreement.)
If a couple divorces, having a prenuptial agreement can make the entire process of dividing up the property and deciding who gets what, go more smoothly.
Also, prenuptial agreements can make a lot of sense particularly in the case of second marriages or if one spouse holds significant assets coming into the marriage (like a house), or if one or both spouses have children from a first marriage. A prenuptial agreement can protect both the children and one’s assets in the event of a divorce.
When executed with the proper formalities, prenuptial agreements are enforceable in Florida.
But here’s the thing.
The focus of a prenuptial agreement is property division upon divorce—not death.
When one spouse dies, a completely different set of legal rules governs his or her right to receive property. For example, in Florida, a spouse has certain homestead rights and elective share rights. You cannot completely disinherit your spouse in Florida.
Since a prenuptial agreement deals only with divorce and does not address inheritance rights (unless specifically written to do so), we must turn to estate planning for that.
What is Estate Planning?
Unlike a prenuptial agreement, the focus of estate planning is what will happen to your property after your death.
Estate planning centers around protecting assets and making sure they are distributed to a decedent’s loved ones according to the decedent’s wishes.
It encompasses taking into account a person’s life situation and implementing estate planning strategies and tools to minimize state and federal gift and estate taxes. Estate planning strives to avoid probate while at the same time ensuring that property distribution at the time of death runs smoothly and efficiently.
At the Intersection of Estate Planning and Prenuptial Agreements
Understanding the differences between estate planning and prenuptial agreements is important if you want your property to remain separate in accordance with your prenuptial agreement at the time of your death.
If that is your goal, your prenup must be taken into account when preparing your estate plan. Otherwise you may find, for example, that the house you came into the marriage with and specifically agreed would remain your separate property in your prenup (so you could leave it to your children at your death), will go to your spouse when you die.
Further, you should be aware that conflicting provisions between a prenuptial agreement and a Last Will and Testament (“Will”) tend to draw Will contests from unhappy, disinherited spouses.
An enforceable prenuptial agreement that anticipates estate planning issues can waive a spouse’s elective share so that property can be used exclusively for one’s children or other beneficiaries — but the key here is that the prenuptial agreement must be valid and enforceable in Florida.
If you want your prenup to be enforceable at the time of your death, enlist the assistance of an estate and probate lawyer to make sure that it complies with all of Florida’s laws.
Individualized Estate Plans that Give You Peace of Mind.
If you have estate planning needs, protecting your family is just one phone call away. At the Law Offices of Samantha J. Fitzgerald, we create estate plans as individualized as you are. We expertly guide individuals through the complex probate process, and capably handle all aspects of the creation, administration, and settlement of trusts as well. Connect with us on Facebook or Instagram or call us at 954-580-3690.