Having practiced marital law in South Florida for over forty years, we have seen our share of arguments over prenuptial agreements. Palm Beach Gardens, Jupiter and Juno Beach are filled with wealthy communities of aging adults. It is not uncommon for those who are widowed or divorced to marry for a second or third time, with existing grown children. While sharing of expenses is seldom a problem, marriage can be a serious economic issue as Florida law can produce unexpected results upon death or divorce. When a couple do not understand the ramifications of marriage later in life, unexpected results can occur.
Few people are aware that Florida law provides that a surviving husband or wife is entitled to what is referred to as “spousal or elective share.” These claims can cause arguments and lawsuits between prior born children and a surviving spouse that can cost tens of thousands of dollars. Prior estate planning, in place at the time of a late in life remarriage can cause economic problems when a spouse passes. There are many issues which are beyond the scope of this article, that qualified counsel are aware of and will take into consideration inworking with you to prepare a valid and enforceabhle prenup.
A relatively simple prenuptial agreement can solve most if not all of these problems.
A prenuptial agreement is a written contract created by two people before they are married. A prenup typically lists all of the property each person owns (as well as any debts) and specifies what each person’s property rights will be after the marriage.
Prenups are not just for the rich. While prenups are often used to protect the assets of a wealthy fiancé, couples of more modest means are increasingly turning to them for their own purposes. Here are some reasons that some people want a prenup:
- A marrying couple with children from prior marriages may use a prenup to spell out what will happen to their property when they die, so that they can pass on separate property to their children and still provide for each other, if necessary. Without a prenup, a surviving spouse might have the right to claim a large portion of the other spouse’s property, leaving much less for the kids.
- Couples with or without children, wealthy or not, may simply want to clarify their financial rights and responsibilities during marriage.
- Many people want to avoid potential arguments if they ever divorce, by specifying in advance how their property will be divided, and whether or not either spouse will receive alimony.
- Prenups can also be used to protect spouses from each other’s debts, and they may address a multitude of other issues as well.
If you don’t enter into a prenuptial agreement, Florida law will determine who owns the property that you acquire during your marriage, as well as what happens to that property at divorce or death. (Property acquired during your marriage is known as either marital property) Florida law may even have a say in what happens to some of the property you owned before you were married.
Under the law, marriage is considered to be a contract between the marrying couple, and with that contract comes certain automatic property rights for each spouse. For example, in the absence of a prenup stating otherwise, a spouse usually has the right to:
- share ownership of property acquired during marriage, with the expectation that the property will be divided between the spouses in the event of a divorce or at death
- incur debts during marriage that the other spouse may have to pay for, and
- share in the management and control of any marital property, sometimes including the right to sell it or give it away.
As prenuptial agreements become more common, the law is becoming friendlier toward them. Traditionally, courts scrutinized prenups with a suspicious eye, because they almost always involved a waiver of legal and financial benefits by a less wealthy spouse and they were thought to encourage breakups.
As divorce and remarriage have become more prevalent, and with more equality between the sexes, courts and legislatures are increasingly willing to uphold premarital agreements. Today, every state permits them, although a prenup that is judged unfair or otherwise fails to meet state requirements will still be set aside.
However, because courts still look carefully at prenups, it is important that you negotiate and write up your agreement in a way that is clear, understandable, and legally sound.
Jupiter Legal Advocates and its attorneys are intimately familiar with Florida marital law as well as the representation of clients in the preparation of prenuptial agreements.