Prenuptial Agreements and Estate Planning Considerations: ‘Till Death Do Us Part

       Nearly 80,000 Florida residents file for divorce each year.  And, Florida has the nation’s highest percentage of residents over the age of 65.  Many people enter into a second marriage with significant assets and adult children.  Accordingly, it is often important to consult an experienced Florida family law attorney for a prenuptial agreement that addresses address both marital and estate planning issues.

Florida adopted the Uniform Premarital Agreement Act (the “UPAA”), which expressly provides that parties may reach a binding contract on the following issues:  (i) the parties’ rights and obligations concerning any assets and liabilities; (ii) the right to buy, sell, use, transfer, or dispose of property; (iii) the distribution of property upon separation, dissolution, death, or other event; (iv) the right to alimony; (v) the making of a will or trust; and (vi) the disposition of life insurance proceeds.  See Fla. Stat. § 61.079(4)(a).

It is imperative to understand the estate and probate rights that may be waived by a spouse.  See Fla. Stat. § 732.702.  For example, a surviving spouse normally has the right to receive an “elective share” of the deceased spouse’s estate (under current law, 30% of the elective estate as defined in Chapter 732, Part II, Florida Statutes). 

A surviving spouse also has special rights to homestead real property.  A decedent may not freely devise homestead real property upon death if survived by a spouse or minor child.  See Fla. Stat. § 732.4015.  The surviving spouse is entitled to a life estate in the property or, upon election, an undivided one-half interest.  See Fla. Stat. §§ 732.401 and 732.4015.  The property is exempt from any claims by the decedent’s creditors.  See Art. X, Sec. 4, Fla. Const. 

Additionally, if a spouse dies intestate (i.e., without a will), a surviving spouse is entitled to a specific share of the estate.  See Fla. Stat. § 732.102.  If a person marries after making a will, the surviving spouse is entitled to receive an intestate share of the estate.  See Fla. Stat. § 732.301.  A surviving spouse is also entitled to receive up to $20,000 in certain exempt property.  See Fla. Stat. § 732.402.  A surviving spouse is separately entitled to receive up to $18,000 in “family allowance” for support during the administration of an estate.  See Fla. Stat. § 732.403.  Finally, a surviving spouse has preference in appointment to serve as personal representative of a decedent’s intestate estate. 

All of these rights may be waived in a prenuptial agreement.  See, e.g., Fla. Stat. §§ 732.701 and 732.702 (to the extent the prenuptial agreement affects estate and probate rights, it must satisfy all other applicable formalities).  The prenuptial agreement, however, may include language requiring the parties to make a will or trust, to give a devise, or not to revoke a will or devise.  See Fla. Stat. §§ 61.079(4)(a) and 732.702.  A practitioner must be prepared to advise clients on any rights that are being waived and avenues to protect the client’s interests.