Prenuptial and Postnuptial Agreements: Not as Scary as they Sound

Prenuptial and Postnuptial Agreements in Florida

Prenuptial and Postnuptial Agreements are often interpreted as signs of mistrust, or as a sign that one or both of the parties to the Agreement are not “fully committed” to the relationship.  Those are common misunderstandings and are far removed from the true purpose of a Prenuptial or Postnuptial Agreement. 

From 10,000 feet, the question is simple:  Would you rather determine the rights and obligations that may arise from divorce or death while you are happily in love with your partner, or leave those issues for the courts to decide during a divorce proceeding?  If that dreaded day ever comes, it is far better to be prepared. 

Why People Use These Agreements

There are many reasons to enter into a Prenuptial or Postnuptial Agreement.  Some people establish these agreements to ensure familial and dynastic wealth is protected, while others simply want to establish each party’s rights and obligations in the event circumstances deteriorate.  In either case, these agreements provide clarity, preserve wealth, and reduce the likelihood of future disputes.  A Prenuptial or Postnuptial Agreement is simply a contract. 

A Prenuptial Agreement (sometimes referred to as an Antenuptial Agreement) is executed prior to marriage and sets forth spousal rights and obligations.  Typically, a Prenuptial Agreement contracts for issues such as rights to certain property, alimony and spousal support.  It is important to note that Prenuptial Agreements cannot dictate anything having to do with children or child support.  Child support is an issue to be addressed by the Court, not the Prenuptial Agreement.   

A Postnuptial Agreement, by contrast, is executed after the parties’ marriage.  Postnuptial Agreements often contract for the same litany of topics as Prenuptial Agreements but differ in the fact they are executed after the parties are married. 

Rights and Obligations

Prenuptial and Postnuptial Agreements allow parties to decide issues, rather than leaving those potential issues for the Court to decide. These agreements can define what constitutes separate, nonmarital property. These agreements can also protect inherited assets from being commingled or recharacterized, address the future appreciation of family-owned businesses or investments, and preserve wealth intended for children or future generations. 

These agreements can also be useful for couples who simply want to bring certainty to financial expectations during the marriage and in the event of divorce or death. In that sense, they are not merely protective documents,these agreements are estate planning tools.

Estate Planning Overlap

There is a significant overlap between estate planning and Prenuptial and Postnuptial Agreements.  One important right a surviving spouse acquires by virtue of marriage is the Elective Share right.  The Elective Share right grants a surviving spouse a right to a portion of the decedent spouse’s estate (generally 30%), which can disrupt carefully structured estate plans.  

Properly drafted Prenuptial or Postnuptial Agreements can include a variety of waivers, including waivers intended to work in conjunction with broader estate planning objectives, such as waiving the right to an Elective Share.  When these documents are coordinated appropriately, they can help carry out a person’s intended estate plan with greater certainty. 

In Florida, when a person marries after making a will and the surviving spouse is omitted from that will, the surviving spouse may be entitled to receive an intestate share unless an exception applies, including waiver by Prenuptial or Postnuptial Agreement. This serves as an important reminder that estate planning documents should be updated after marriage.  Failing to update an estate plan after marriage can produce a result very different from what was intended. A surviving spouse may receive significantly more, or significantly less, than the decedent expected.

Prenuptial and Postnuptial Agreements are not nearly as intimidating as they sound. When approached thoughtfully, they function much like any other contract or planning tool: they promote transparency, set expectations, and reduce the potential for conflict. Rather than signaling mistrust, these agreements can foster marital harmony by giving both spouses a clear understanding of their financial rights and responsibilities. In that sense, making a Prenuptial or Postnuptial Agreement part of standard marital and estate planning is simply a practical step toward a more stable and secure relationship.