Most people think of a prenuptial agreement as a divorce document. It sets out who keeps the house, how retirement accounts are split, and whether alimony will be paid if the marriage ends. That is only half of the picture. Marriages end in one of two ways, divorce or death, and Florida law gives a surviving spouse significant rights in the estate of a spouse who dies. Unless those rights are addressed properly, a surviving spouse may be able to claim a large share of assets that the other spouse intended to leave to children, a family business, or other beneficiaries.
For couples entering a second marriage, those with children from prior relationships, business owners, and anyone expecting a meaningful inheritance, the estate side of a prenup can matter just as much as the divorce side. This article explains the inheritance rights a Florida spouse holds, how the elective share works, the specific formalities Florida requires to waive those rights, and how a well-drafted agreement can coordinate with an estate plan so that both spouses’ intentions are carried out.
What Inheritance Rights Does a Spouse Have Under Florida Law?
Florida’s Probate Code gives a surviving spouse several distinct protections. Each one operates differently, and each one can be waived. Understanding them individually is the first step toward deciding which ones a prenup should address.
The elective share. This is the most significant right for most couples. It allows a surviving spouse to claim a percentage of the deceased spouse’s assets regardless of what the will or trust says. It is discussed in detail below.
The intestate share. If a spouse dies without a valid will, Florida’s intestacy statute determines who inherits. A surviving spouse often receives the entire probate estate, or half of it where the deceased spouse had children from another relationship or the surviving spouse has children who are not descendants of the deceased spouse.
The pretermitted spouse share. When someone signs a will before marriage and never updates it, the new spouse may be entitled to receive what they would have received had the person died without a will. This protection exists to address the common situation where a person forgets to revise an estate plan after getting married. It does not apply if the spouse was provided for in the will, if the will shows an intent not to provide for the spouse, or if the spouse waived the right in a written agreement.
Homestead rights. Florida’s constitution restricts how a homestead can be passed at death when the owner is survived by a spouse or a minor child. If a married homeowner tries to leave the homestead to someone other than the spouse, the law generally overrides that choice and gives the surviving spouse a life estate in the home, or the option to elect a one-half interest as a tenant in common, with the remainder passing to the deceased spouse’s descendants.
Exempt property. A surviving spouse is entitled to certain household furniture, furnishings, and appliances up to a statutory value, along with up to two motor vehicles meeting statutory requirements and certain other items, free from the claims of creditors.
Family allowance. During administration of the estate, the court may award a reasonable allowance for the support of the surviving spouse and certain dependents, subject to a statutory cap.
Preference to serve as personal representative. When there is no will, or the will does not name a personal representative who can serve, a surviving spouse generally has priority to be appointed to administer the estate.
Each of these rights can surprise the heirs of a spouse who assumed a will or trust would control everything. A comprehensive premarital agreement anticipates them.
How Does the Florida Elective Share Work?
The elective share gives a surviving spouse the right to take 30 percent of the “elective estate” of a spouse who was domiciled in Florida at death. The key point is that the elective share is not limited to what passes through probate. The Florida legislature defined the elective estate broadly to prevent spouses from avoiding the elective share by moving assets out of the probate estate.
The elective estate can include:
- The decedent’s probate estate
- Assets held in a revocable trust
- The decedent’s share of property held in joint tenancy with right of survivorship or tenancy by the entireties
- Bank accounts payable on death and securities registered to transfer on death
- Retirement accounts and similar plans, subject to certain rules
- The net cash surrender value of life insurance policies on the decedent’s life
- Certain property transferred during the decedent’s lifetime in which the decedent retained an interest or control
- Certain gifts made within one year of death above an annual threshold
Protected homestead is excluded from the elective estate because the homestead is already governed by its own set of constitutional protections. Certain other interests are also excluded or valued under specific statutory rules.
The practical consequence is significant. Suppose a person with substantial wealth places everything into a revocable trust for the benefit of children from a prior marriage, then remarries without a prenup. When that person dies, the surviving spouse can file an election and claim 30 percent of the combined value of the trust, the probate estate, the joint accounts, and the other assets included in the elective estate. The trust that was meant to protect the children’s inheritance may have to contribute toward satisfying that claim.
Certain amounts the surviving spouse already receives count toward satisfying the elective share. For example, property passing to the spouse under the will or trust, or through joint ownership, may be applied first. The statute also lays out the order in which other beneficiaries must contribute if additional assets are needed.
The right to elect is personal to the surviving spouse. It can be exercised by the spouse, by an attorney in fact acting under a durable power of attorney, or by a guardian, with court approval in some circumstances. The election must be filed within a strict deadline, generally the earlier of six months after service of the notice of administration or two years after the date of death. A surviving spouse who misses that window loses the right.
Can a Prenuptial Agreement Waive the Elective Share?
Yes. Florida expressly allows a spouse or future spouse to waive the elective share and the other spousal rights described above. The governing statute, section 732.702 of the Florida Statutes, permits a waiver in whole or in part, before or after marriage, through a written contract, agreement, or waiver.
The statute also contains an important interpretive rule. Unless the waiver provides otherwise, a waiver of “all rights,” or equivalent language, in the property or estate of a present or prospective spouse is treated as a waiver of all rights to the elective share, intestate share, pretermitted share, homestead property, exempt property, family allowance, and preference in appointment as personal representative. It also operates as a disclaimer of any beneficial interest the waiving spouse would otherwise receive by intestate succession or by a will executed before the waiver.
That default rule is useful, but relying on it is rarely the best drafting approach. A clear agreement specifies exactly which rights are being waived, which are being preserved, and what the surviving spouse will receive instead. Specific language leaves far less room for dispute among grieving family members, and it allows the couple to make deliberate choices rather than defaulting to a complete waiver that neither may actually want.
Florida’s Special Execution Requirements for Estate Waivers
This is one of the most important and most overlooked points in Florida prenuptial practice. A premarital agreement that is perfectly valid for divorce purposes may fail to waive estate rights if it was not executed with the formalities required by the Probate Code.
Under section 61.079, which governs premarital agreements generally, the agreement must be in writing and signed by both parties. The estate waiver statute adds a further requirement: the waiver must be signed by the waiving party in the presence of two subscribing witnesses. Florida courts have treated these witnessing requirements seriously. A prenup that was signed and notarized but not witnessed by two subscribing witnesses can be vulnerable when a surviving spouse later tries to claim the elective share or homestead rights.
Because the consequences of a defective execution may not surface until years or decades later, when the person who drafted the agreement is gone and the spouse who wanted the waiver has died, careful execution is essential. A properly prepared agreement is typically signed by both parties in front of two witnesses and a notary, with each witness signing in the presence of the parties and one another. Many practitioners also include a self-proving style acknowledgment to create a clean record of the signing.
Anyone holding an older prenup should have it reviewed with this in mind. If the agreement lacks the required witnessing, the couple may be able to address the problem through a postnuptial agreement or a separate written waiver executed with the proper formalities, subject to the disclosure rules discussed below.
Does a Spouse Have to Disclose Finances to Waive Estate Rights?
The answer depends on timing, and it differs from the rules that apply in a divorce.
Under section 732.702, no disclosure is required for a waiver of estate rights executed before marriage. For a waiver executed after marriage, each spouse must make fair disclosure to the other of their estate. This distinction reflects a policy choice by the Florida legislature. Before marriage, the parties are not yet in a confidential relationship and each is free to walk away. After marriage, spouses owe each other a higher duty, so fair disclosure becomes a condition of a valid waiver.
That statutory rule does not mean a premarital estate waiver is immune from challenge. A waiver obtained through fraud, duress, coercion, or overreaching can still be attacked, and courts look closely at the circumstances in which the agreement was signed. It also does not mean disclosure is unimportant in a prenup. The same agreement will usually govern both divorce and death, and the divorce side of the agreement is subject to the disclosure analysis in section 61.079. An agreement signed without meaningful disclosure may hold up in probate and still be vulnerable in a divorce. For that reason, a careful prenup attorney in Tampa will almost always recommend full financial disclosure regardless of which set of rules technically applies.
How Homestead Rights Fit Into a Prenup
Homestead is one of the areas where Florida law is most distinctive, and it frequently causes problems in blended families.
Under the Florida Constitution, if a homestead owner dies survived by a spouse or minor child, the homestead generally cannot be devised freely. When there is a surviving spouse but no minor child, the owner may leave the homestead to the spouse outright. If the owner tries to leave it to anyone else, or dies without a will, the law steps in. The surviving spouse typically receives a life estate, with the remainder going to the decedent’s descendants, or can elect within a set period to take a one-half interest as a tenant in common instead.
Consider a common scenario. A widow owns a home in South Tampa that she wants her adult children to inherit. She remarries and her new husband moves in. She signs a will leaving the house to her children, but no one addresses his homestead rights. When she dies, her husband may be entitled to live in the home for the rest of his life, and her children may have to wait decades to receive it, while potentially sharing responsibility for certain costs. Disputes over repairs, taxes, insurance, and upkeep between a stepparent and adult stepchildren are common in these situations.
A properly executed prenup can waive the spouse’s homestead rights, allowing the owner to leave the home to whomever they choose. Couples do not have to choose between all or nothing, though. An agreement might waive homestead rights while granting the surviving spouse the right to remain in the home for a defined period after death, such as one year, to allow time to relocate. Another approach allows the surviving spouse to stay in the home for life but assigns responsibility for specific expenses to the spouse. Clear drafting on these details prevents the most frequent sources of conflict.
It is worth noting that a spouse cannot waive the protections that belong to a minor child. If a homestead owner dies leaving a minor child, the constitutional restriction on devise continues to apply regardless of any spousal waiver. Florida law also allows spouses to waive homestead descent restrictions through specific language in a deed, which may be relevant when property is titled after the marriage. Coordinating the prenup with the deed and the estate plan avoids inconsistencies.
Retirement Accounts: Where Federal Law Changes the Analysis
Retirement accounts deserve special attention because a Florida prenup cannot fully control them on its own.
Many employer-sponsored retirement plans, including most 401(k) plans and pensions, are governed by federal law. Under those federal rules, a participant’s spouse is generally entitled to be the beneficiary of the account or to receive a survivor annuity unless the spouse consents in writing to a different beneficiary. The consent must satisfy specific requirements, including being witnessed by a notary or a plan representative.
The critical problem is that federal law requires this consent from a spouse. A fiancé is not yet a spouse, so a waiver signed before the wedding generally does not satisfy the federal requirement, even if it is included in a valid Florida prenup. If nothing more is done, the new spouse may remain entitled to the account at the participant’s death despite having waived all rights in the premarital agreement.
The standard solution is to include a provision in the prenup obligating each spouse to sign the plan’s spousal consent forms after the marriage. The couple should then actually follow through by completing the plan’s waiver and beneficiary designation paperwork shortly after the wedding. A prenup that contains the obligation but is never followed up with the proper forms can lead to litigation, with the deceased spouse’s children trying to enforce the contractual promise against the surviving spouse.
Individual retirement accounts are treated differently because they are not subject to the same federal spousal consent rules. Their beneficiary designations generally control, though IRAs can still be included in the Florida elective estate. The agreement and the beneficiary forms should be aligned so the waiver and the actual designations tell the same story.
Life Insurance, Trusts, and Beneficiary Designations
Many of the most valuable assets a person owns pass outside of a will. Life insurance, trust assets, transfer on death accounts, and jointly titled property often make up the bulk of an estate. A premarital agreement that addresses only the probate estate may miss much of what matters.
A well-constructed agreement typically addresses the following:
- Life insurance. If one spouse is giving up estate rights, the agreement may require the other spouse to maintain a life insurance policy for the benefit of the surviving spouse. This is one of the most common ways to provide fair treatment while still protecting assets for children. The agreement should specify the amount, how long the obligation lasts, and what happens if the policy lapses.
- Trusts. If one spouse has a revocable trust, the agreement should confirm that the other spouse waives any elective share claim against trust assets. If a spouse is expected to benefit from a trust, the agreement can describe that commitment.
- Joint accounts and joint property. Joint ownership can undo careful planning, because jointly held property with survivorship rights passes automatically to the surviving owner. The agreement should address whether joint accounts will be opened and how they will be treated.
- Beneficiary designations. Designations on accounts, annuities, and policies should be reviewed after the wedding to ensure they match the agreement.
Estate planning documents should be updated to be consistent with the prenup. A will or trust that contradicts the agreement invites confusion. The agreement can also require each spouse to create or maintain specific provisions in their estate plans.
Common Ways Couples Structure the Estate Provisions of a Prenup
There is no single right approach. The best structure depends on the couple’s ages, assets, children, health, and expectations. Some common frameworks include:
Mutual complete waiver. Each spouse waives all rights in the other’s estate. This approach is common in later-in-life marriages where both spouses have their own assets and adult children, and each wants to leave everything to their own family.
Waiver with a guaranteed benefit. The surviving spouse waives the elective share and other statutory rights but is guaranteed a specific benefit, such as a fixed sum, a percentage of the estate, a life insurance policy, or an interest in a trust. This tends to be viewed as fairer and may reduce the risk of later disputes.
Benefits that increase with the length of the marriage. The surviving spouse’s benefit grows over time. For example, a spouse might receive a modest amount if death occurs within the first few years of marriage and a larger amount if the marriage lasts longer. This mirrors how many couples think about fairness.
Partial waiver. The spouse waives some rights but preserves others. For instance, the spouse might waive the elective share while retaining exempt property rights and the family allowance, or waive homestead rights while keeping a right to occupy the home for a transition period.
Trust-based arrangements. One spouse commits to leaving assets in a trust that provides income to the surviving spouse for life, with the principal passing to children at the surviving spouse’s death. This can balance support for the spouse with protection for the next generation.
Whatever structure is selected, the agreement should be precise. Vague phrases about what the surviving spouse will “receive” or be “taken care of” are a frequent source of litigation.
How the Estate Side Relates to Alimony and Divorce Provisions
Although the estate provisions and the divorce provisions of a prenup address different events, they work together. A spouse who waives alimony and a share of marital property in the event of divorce, and who also waives all estate rights, may be left with very little if the marriage ends in either way. Courts and opposing counsel look at the agreement as a whole.
This is one reason a Tampa family law attorney preparing a prenup often coordinates the divorce terms with the estate terms. For example, an agreement might provide a lump sum or structured payments in lieu of alimony on divorce, and a comparable life insurance benefit if the marriage ends at death. An experienced alimony lawyer in Tampa will also consider how Florida’s 2023 alimony reform, which eliminated permanent alimony, changes what a spouse would otherwise receive in a divorce, and whether the agreement’s terms remain sensible against that new baseline.
The two sets of terms can also create inconsistencies if they are drafted separately. For instance, an agreement might define separate property one way for divorce purposes and use different language in the estate waiver. Consistent definitions throughout the agreement reduce the risk of disputes.
What Happens When a Waiver Is Challenged After Death
Challenges to estate waivers take place in probate court and often arise at a difficult time. A surviving spouse files a petition for the elective share or claims homestead rights, and the personal representative or the deceased spouse’s children respond by asserting the prenup. The surviving spouse may then argue that the waiver is invalid.
Common arguments include:
- The waiver was not signed in the presence of two subscribing witnesses as the Probate Code requires
- The agreement was procured through fraud, duress, coercion, or overreaching
- The language of the agreement did not clearly waive the specific right being claimed
- For a waiver signed after marriage, fair disclosure was not provided
- The agreement was later revoked or modified by the parties
These cases present a practical challenge: the person who wanted the waiver is no longer available to testify about how the agreement was negotiated. Evidence therefore comes from the document itself, the attorneys involved, the witnesses, correspondence, and financial records. Agreements that were negotiated with independent counsel on both sides, executed with full formalities, and drafted with specific language are far more likely to be upheld.
The time limits for the elective share also shape strategy. Because the election must be filed within the statutory deadline, a surviving spouse who believes the waiver is invalid generally must file the election on time and litigate the validity of the waiver, rather than waiting to see how the dispute unfolds.
Practical Steps for Couples in Tampa
For anyone planning a marriage who wants the estate provisions of a prenup to work, a few steps make a meaningful difference.
Begin the process well before the wedding. Estate provisions require coordination with wills, trusts, deeds, insurance, and retirement accounts, which takes time.
Have each spouse represented by independent counsel. Independent representation protects both the agreement’s enforceability and each spouse’s interests.
Provide complete financial disclosure. Even though a premarital estate waiver does not require disclosure under the Probate Code, the divorce provisions of the same agreement do depend on it, and disclosure strengthens the agreement against claims of fraud or overreaching.
Execute the agreement with two subscribing witnesses and a notary. This single step addresses one of the most common defects in Florida prenups.
Follow through after the wedding. Sign any required retirement plan spousal consents, update beneficiary designations, retitle assets as the agreement contemplates, and revise estate planning documents so they match the prenup.
Review the agreement periodically. Children, grandchildren, business sales, relocations, health changes, and inheritances may make it appropriate to revisit the terms through a properly executed amendment.
Working with a Tampa prenuptial agreement lawyer who understands both family law and the Probate Code, and who is willing to coordinate with an estate planning attorney where needed, helps ensure the agreement holds up whether the marriage ends in a Hillsborough County divorce courtroom or in probate.
Frequently Asked Questions About Prenups and Florida Inheritance Rights
What is the elective share in Florida? The elective share is a surviving spouse’s right to claim 30 percent of the deceased spouse’s elective estate, regardless of what the will or trust provides. The elective estate is broad and can include trust assets, joint accounts, payable on death accounts, retirement accounts, and certain other property. Protected homestead is excluded because it is governed by separate rules.
Can a prenup waive a spouse’s right to inherit in Florida? Yes. Florida law allows a spouse or future spouse to waive the elective share, intestate share, pretermitted share, homestead rights, exempt property, family allowance, and the preference to serve as personal representative. The waiver must be in writing and signed by the waiving party in the presence of two subscribing witnesses.
Does a prenup need witnesses in Florida? The general premarital agreement statute requires only a signed writing. However, to waive estate rights, the Probate Code requires the waiving party to sign in the presence of two subscribing witnesses. An agreement without proper witnessing may be valid for divorce purposes but fail to waive inheritance rights.
Is financial disclosure required to waive the elective share? For a waiver signed before marriage, Florida’s Probate Code does not require disclosure. For a waiver signed after marriage, fair disclosure is required. Disclosure is still strongly recommended in a prenup because the divorce provisions of the agreement are subject to different standards.
Can a prenup waive a spouse’s rights to my 401(k)? Not by itself in most cases. Federal law generally requires a spouse, not a fiancé, to consent in writing to waive survivor rights in many employer-sponsored plans. A prenup should require the spouse to sign the plan’s consent forms after the wedding, and those forms should actually be completed.
What happens to my Florida home if I remarry without a prenup? If you die survived by a spouse and try to leave your homestead to someone else, your spouse will typically receive a life estate in the home, or may elect a one-half interest as a tenant in common, with the remainder going to your descendants. A properly executed waiver can allow you to leave the home to your children or other beneficiaries.
Can the estate waiver in a prenup be challenged after death? Yes. A surviving spouse may argue that the waiver was not properly witnessed, was obtained through fraud, duress, coercion, or overreaching, or did not clearly cover the right being claimed. Strong drafting, independent counsel, and proper execution make these challenges much harder to win.
Can we sign a postnuptial agreement if we never signed a prenup? Yes. Florida permits spouses to waive estate rights after marriage. A postnuptial waiver requires fair disclosure of each spouse’s estate and must be signed in the presence of two subscribing witnesses. Postnuptial agreements are also evaluated under case law standards for divorce purposes.
Talk With a Tampa Prenuptial Agreement Lawyer About Protecting Your Estate
A prenup that addresses only divorce leaves a major gap. Florida gives surviving spouses substantial rights in an estate, and without a valid waiver, those rights can override a carefully prepared will or trust. The rules for waiving them are specific, from the witnessing requirements of the Probate Code to the federal consent rules that govern many retirement plans.
Whether you are planning a first marriage, entering a second marriage with children from a prior relationship, or reviewing an existing agreement, a Florida prenuptial agreement attorney can help you decide which rights to waive, what the surviving spouse should receive instead, and how to make sure the agreement is executed and followed through correctly. If you live in Tampa or elsewhere in Hillsborough County, contact our office to schedule a consultation.
Written by Damien McKinney, Founding Partner
Damien McKinney is the Founding Partner of The McKinney Law Group Family & Divorce Lawyers, bringing nearly two decades of experience to complex marital and family law matters. He is licensed in both Florida and North Carolina and has been repeatedly recognized as a Rising Star by Super Lawyers.