07/30/2025
Florida Prenuptial and Postnuptial Agreement Guide (2025)
Get insights on how marital agreements work, including spousal support, legal rights, and the impact on your assets.
In this article, we’ll break down:
Prenuptial vs. Postnuptial Agreements: What’s the Difference?
Florida Premarital Agreement Statute – Florida Statute 61.079
What Can Be Included in a Florida Premarital Agreement?
Requirements for Enforceability in Florida
When Can a Prenup Be Invalidated?
Modifying a Premarital Agreement
The Importance of Legal Counsel for a Premarital Agreement in Florida
Premarital agreements in Florida aren’t just for the wealthy or for celebrities—more and more people are opting to protect their interests in writing before tying the knot. Whether you’re entering your first marriage, bringing children or assets from a prior relationship, or just want clarity about your financial future, a prenuptial agreement can provide protection and peace of mind.
Prenuptial vs. Postnuptial Agreements: What’s the Difference?
Prenuptial agreements, also known as prenups, are signed before the marriage takes place. These agreements must be in writing, signed by both parties, and become effective once the parties are married. Prenups are typically used if one or both parties have significant assets, own a business, or have children from a previous relationship. These agreements enable the couple to feel confident that, should the marriage end, any assets they have that predate the marriage will be protected.
In contrast, postnuptial agreements are signed after the marriage. They’re often used to address significant changes in one person’s financial status following the marriage. For example, if one spouse comes into a significant inheritance or starts a business, they might request a postnuptial agreement.
Additional differences between prenuptial and postnuptial (antenuptial) agreements include:
1. Consideration:
Prenuptial agreements require the marriage itself as sufficient legal consideration.
Postnuptial agreements require additional consideration, such as a mutual exchange of property rights or promises, as the marriage has already been established.
2. Full Disclosure Requirements:
Prenuptial agreements often hinge less on full and fair disclosure since the marriage has yet to occur, although fairness and voluntariness must still be ensured.
Postnuptial agreements demand stricter adherence to full and frank financial disclosure at the time of ex*****on due to the fiduciary relationship between spouses during marriage.
3. Judicial Scrutiny and Fairness:
Prenuptial agreements are generally scrutinized under contract law principles, ensuring they are not the product of fraud, duress, or coercion:
Under Florida law, “[v]alid prenuptial agreements regarding post-dissolution [sic] support are contracts.” Lashkajani v. Lashkajani, 911 So. 2d 1154, 1158 (Fla. 2005). Prenuptial agreements and marital settlement agreements are to be construed in the same manner as any other contract.
See: Watts v. Goetz – 311 So.3d 253.
Postnuptial agreements face heightened scrutiny because spouses are expected to act in a fiduciary-like capacity towards one another. The courts have held that parties to an antenuptial agreement do not deal at arm’s length and, therefore, must exercise a high degree of good faith:
He is correct that the parties to an antenuptial agreement do not deal at arm’s length and therefore must exercise a high degree of good faith and candor in their dealings.
See: Carnell v. Carnell – 398 So.2d 503.
Furthermore, the courts have held that the relationship between parties to an antenuptial agreement is one of mutual trust and confidence:
“[I]t is black letter law that the parties to an antenuptial agreement do not deal at arm[‘]s length with each other.” Lutgert v. Lutgert, 338 So. 2d 1111, 1115 (Fla. 2d DCA 1976). Rather, “[t]heir relationship is one of mutual trust and confidence.” Id. (footnote omitted). As such, “the parties must exercise the highest degree of good faith, candor[,] and sincerity in all matters bearing on the terms and ex*****on of the proposed agreement, with [f]airness being the ultimate measure.” Id. (footnote omitted).
See: Ziegler v. Natera – 279 So.3d 1240.
4. Modification and Revocation:
Prenuptial agreements, generally speaking, cannot be modified unless explicitly permitted by the terms of the agreement or through mutual consent. However, see below for more information on circumstances when a prenuptial agreement can be modified.
Postnuptial agreements are easier to modify or revoke through mutual agreement, usually in writing.
5. Burden of Proof:
For prenuptial agreements, the spouse contesting the agreement must often prove unfairness or invalidity.
For postnuptial agreements, the spouse benefiting disproportionately may bear the burden to prove fairness and voluntariness.
6. Fairness at Ex*****on vs. Current Fairness:
Evaluation of prenuptial agreements considers fairness at the time of ex*****on, even if outcomes appear inequitable upon enforcement.
Postnuptial agreements must meet fairness standards both at ex*****on and during enforcement due to the ongoing fiduciary relationship.
7. Waiving Spousal Rights and Obligations:
Prenuptial agreements can waive certain future marital rights like alimony or equitable property distribution upon divorce, provided waivers are explicit.
Postnuptial agreements may waive similar rights, but courts are less likely to enforce waivers that result in significant hardship to an already dependent spouse due to the heightened fiduciary duty.
8. Timing of Assets:
Prenuptial agreements are more likely to account for property and obligations brought into the marriage.
Postnuptial agreements often address assets and obligations that have developed or evolved during the marriage.
Florida Premarital Agreement Statute – Florida Statute 61.079
In Florida, the legislature enacted Florida Statute 61.079 which is based on the Uniform Premarital Agreement Act (UPAA). This act standardizes premarital agreements across many states. The key points of Florida’s statute include:
Prenuptial agreements are effective only upon legal marriage.
If an agreement was signed involuntarily or the result of fraud, duress, or coercion, it is not enforceable.
Agreements allow couples to define property rights, alimony, life insurance, estate planning, and more.
A prenuptial agreement cannot affect a child’s right to support.
A couple can amend or revoke a prenuptial agreement if both parties agree.
Spousal support waivers may be invalidated if enforcement causes a party to qualify for public assistance.
Even in void marriages, courts may enforce prenups to prevent injustice.
The statute of limitations is paused during the marriage, but defenses such as laches and estoppel may still apply.
The statute ensures prenuptial agreements do not conflict with Florida’s Probate Code.
Note: Prenuptial agreements are typically used to protect assets that predate the marriage. Anything acquired during the marriage due to the contribution of both spouses through their work or service is considered marital property and is treated differently during the dissolution of the marriage.
What Can Be Included in a Florida Premarital Agreement?
According to the statute, a prenuptial agreement can provide for the management of property and how property is divided upon divorce or death. It can also specify life insurance beneficiaries and include the waiver of spousal support. Prenuptial agreements may also determine which laws will be used to interpret the agreement. However, there are limits to what a premarital agreement can cover. Florida law sets clear boundaries. According to Florida Statute 61.079(4):
“Parties to a premarital agreement may contract with respect to:
The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
The establishment, modification, waiver, or elimination of spousal support;
The making of a will, trust, or other arrangement to carry out the provisions of the agreement;
The ownership rights in and disposition of the death benefit from a life insurance policy;
The choice of law governing the construction of the agreement; and
Any other matter, including their personal rights and obligations, not in violation of either the public policy of this state or a law imposing a criminal penalty.”
Note: The statute emphasizes that the right of a child to support may not be adversely affected by a premarital agreement. Nor can a prenuptial agreement dictate child custody arrangements.
Requirements for Enforceability in Florida
To be enforceable under Florida law, a premarital agreement must meet the requirements for fairness, voluntariness, and disclosure. Both spouses must act in good faith and provide a full disclosure, or fair approximation, of their financial situation.
If there is evidence of fraud, duress, or coercion, this may nullify the agreement. In addition, the agreement must be fair and reasonable based on the circumstances of both parties at the time the agreement was signed. If the disadvantaged spouse was not given a reasonable understanding of the other spouse’s assets and income, the agreement may not be enforceable.
Oral prenups are not enforceable. Any nuptial agreement must be made in writing and signed by both parties, voluntarily. Notarization is not a legal requirement, but it’s easier to enforce an agreement if it has been notarized.
Note: Florida courts scrutinize prenuptial agreements, especially if there is a significant power imbalance. In general, features such as waiving spousal support, attorney fees, or claims to property in the event of a divorce are enforceable. However, there may be judicial review if the prenuptial agreement attempts to negatively impact public policies, such as ensuring spousal support during marriage.
When Can a Prenup Be Invalidated?
Under Florida law, a prenuptial agreement can be invalidated for a variety of reasons, including:
Lack of Independent Counsel: A prenup is more likely to be upheld if both parties had access to their own independent legal counsel before signing it, because this ensures both individuals were aware of the implications of the agreement.
Coercion or Duress: If one spouse pressures the other or rushes the agreement before the wedding, the coerced spouse may be able to challenge the agreement in court. If coercion or duress is found, the agreement would no longer pass the requirements for fairness and voluntariness.
Unconscionable Terms: Grossly one-sided provisions may be deemed unfair and unenforceable.
Incomplete Financial Disclosure: Both parties must truthfully and thoroughly share details of their assets, income, and liabilities. If they’re unable to provide information, a reasonable approximation must be provided.
Improper Ex*****on: Agreements must be made in writing, signed, and witnessed. Having a prenuptial agreement notarized is not legally required in Florida, but it may help ensure the agreement is enforceable.
Invalid Provisions: Attempting to include provisions that go beyond the scope of what’s permitted for prenuptial agreements (e.g., child custody or support arrangements) could render the entire agreement void.
Changed Circumstances: Certain clauses in a prenuptial agreement may become invalid if there is a significant change in the circumstances of one or both members of the couple.
In Bates v. Bates, 345 So.3d 328, the court held, “There are two distinct grounds for invalidating a prenuptial agreement: (1) where the defending spouse has engaged in “fraud, deceit, duress, coercion, misrepresentation, or overreaching”; and (2) where “the agreement makes an unfair or unreasonable provision for [the challenging] spouse, given the [relative] circumstances of the parties.”
Modifying a Premarital Agreement
Under Florida law, premarital agreements can be modified after marriage as long as both parties agree in writing to the changes. Modifications occur if the agreement explicitly permits a change or if the parties mutually consent to a change.
The enforceability of a modified premarital agreement is subject to the same conditions as the original agreement. This means that the modified agreement must not be the product of fraud, duress, coercion, or overreaching, and it must not be unconscionable at the time it was executed. If these conditions are met, the modified agreement will be enforceable in the same manner as the original premarital agreement (Florida Statute 61.079).
Judicial Modifications Related to Alimony (Spousal Support)
Certain provisions within a prenuptial agreement, such as those related to spousal support, may be subject to judicial modification. For example, depending on the language in the agreement, prenuptial agreements that limit alimony to a certain amount may be modified by the court under changed circumstances, as provided in section 61.14 of the Florida Statutes. This judicial oversight ensures that the terms of the agreement remain fair and reasonable in light of any significant changes in the parties’ circumstances.
Florida courts have also ruled on the issue of modifying premarital agreements related to alimony:
Prenuptial agreements limiting alimony to a certain amount are subject to judicial modification. See Posner v. Posner, 233 So.2d 381, 385–86 (Fla.1970) (“Posner I ”) (an antenuptial agreement settling alimony rights is subject to increase or decrease under changed conditions as provided in section 61.14, Florida Statutes, as the parties are assumed to have known of the existence of the statute when they made their agreement); Posner v. Posner, 257 So.2d 530, 534 (Fla.1972) (“Posner II ”) (“a change in circumstances of the party since the date of the agreement can be considered by the [c]hancellor in modification of support and alimony provided for in an antenuptial agreement”); Lashkajani v. Lashkajani, 911 So.2d 1154, 1156–57 (Fla.2005) (discussing evolution of law in Posner I & II ).
See: Hahamovitch v. Hahamovitch, 133 So.3d 1008
The Importance of Legal Counsel for a Premarital Agreement in Florida
Having experienced legal representation is one of the most critical steps in creating an enforceable, effective prenup. A family law attorney can:
Ensure full and fair financial disclosure
Draft customized terms tailored to your relationship and long-term goals
Avoid invalid provisions or ex*****on mistakes
Help you understand your rights and obligations
Reduce the chance of future litigation by making the agreement fair and clear
Courts place significant weight on whether each party had legal counsel when evaluating the validity of a premarital agreement
