Florida is an Equitable Distribution State. Under Florida law, a spouse is entitled to a minimum of 30% of your probate assets and non-probate assets. A spouse may waive this “elective share” by executing a valid and enforceable Pre-Marital Agreement or Post-Marital Agreement. This is a very common practice, especially for people in their second marriages – as they want to ensure their children from a prior marriage will inherit their assets.
Pre-Marital Agreements, also known as “Prenuptial Agreements” have been litigated for many years. Don’t let yours be one of them. A Pre-Marital Agreement is an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage. The agreement must be in writing and signed by the parties.
In 1983, the Uniform Premarital Agreement Act (UPAA) was drafted to put an end to the confusion and inconsistent case law that attempted to define enforcement of Pre-Marital Agreement safeguards. In 2007, Florida adopted the UPAA. The new Act applies to all Pre-Marital Agreements executed on or after October 1, 2007. Florida has enacted some variations from the original Act. This law is very technical and close attention to detail is required to effectively draft an enforceable Pre-Marital Agreement.
The parties to a Pre-Marital Agreement may contract with respect to the rights and obligations of the party’s property in the event of dissolution of marriage or even death. The parties to the Agreement can also contract with respect to one’s right to spousal support. A party cannot contract to waive child support, among other things.
There are many ways for a spouse to attack the validity of a Pre-Marital Agreement. For example, the parties must enter into the agreement voluntarily and the parties must provide a “fair and reasonable” disclosure of their assets and financial obligations.
The laws governing Post Marital Agreements are similar to those in place for Pre-Martial Agreements.
Drafting a Pre-Martial Agreement or Post Marital Agreement is NOT A-Do-It-Yourself-Task. You should consult with experienced legal counsel if you are contemplating a Pre-Martial Agreement or Post Martial Agreement. Moreover, if you have a Pre-Marital Agreement or Post Marital Agreement, you should have experienced legal counsel review your documents and advise you as to its enforceability. Contact the Horton Law Group at (561) 299-0018 to schedule a free consultation.