Introduction
Prenuptial agreements have become an essential estate and financial planning tool for couples across Florida, especially in cities like Tampa where property values, family-owned businesses, and complex financial portfolios frequently intersect with marriage. While once considered taboo or relevant only to the ultra-wealthy, prenuptial agreements are now widely used to safeguard individual assets, clarify debt responsibilities, and prevent costly litigation in the event of divorce.
Florida law governs prenuptial agreements through specific statutes that establish how these contracts must be created, what they can cover, and under what circumstances they can be invalidated. Failure to comply with these legal requirements can render a prenup useless when it is needed most. That’s why understanding the Florida statutes governing prenuptial agreements is crucial for any couple contemplating marriage in the Tampa Bay area.
A seasoned Tampa divorce lawyer will draft prenuptial agreements that comply with both the letter and spirit of the law—protecting clients against future disputes. This article breaks down the core statutes, explains how they apply in real-world scenarios, and outlines best practices for creating a valid and enforceable prenup in Florida.
The Governing Statute: Florida Statutes §61.079 – The Uniform Premarital Agreement Act
Florida adopted the Uniform Premarital Agreement Act (UPAA) in 2007. Codified in Florida Statutes §61.079, this statute lays the foundation for prenuptial agreements across the state. It applies to all prenups executed on or after October 1, 2007.
Key elements of the statute include:
- Definition of a premarital agreement
- Requirements for enforceability
- Permissible and prohibited content
- Conditions under which an agreement may be modified or revoked
- Limitations related to child custody and child support
A Tampa divorce lawyer will rely on this statute as the primary source of legal authority when drafting, reviewing, or challenging a prenuptial agreement.
What Is a Prenuptial Agreement Under Florida Law?
Under §61.079(1), a premarital agreement is defined as:
“An agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.”
This means the agreement must be executed before the marriage and becomes legally binding only when the couple is married. Agreements signed after the wedding are considered postnuptial and are subject to different rules.
A Tampa divorce lawyer will ensure that the timing and purpose of the agreement are aligned with Florida’s statutory requirements, as any deviation from this rule could render the agreement unenforceable.
Statutory Requirements for Enforceability
Florida Statutes §61.079(3) lists the essential requirements for a valid and enforceable prenuptial agreement. To meet these criteria, a prenup must:
- Be in writing
- Be signed by both parties
- Be voluntarily entered into
- Be based on full and fair disclosure unless explicitly waived in writing
These elements are non-negotiable. Any agreement that fails to meet these standards may be disregarded by the court in the event of a divorce.
A Tampa divorce lawyer will use this checklist as a baseline when drafting a prenup to ensure that enforceability is never in question.
Voluntariness: Avoiding Coercion and Duress
Florida courts will invalidate a prenup if it was signed under duress, coercion, or without adequate time to review. The law does not impose a specific timeframe for when a prenup must be signed before the wedding, but last-minute agreements are often scrutinized more closely.
Common factors courts examine:
- Whether the agreement was signed days or hours before the ceremony
- Whether one party threatened to cancel the wedding
- Whether both parties had the opportunity to consult with legal counsel
- Whether a party felt pressured to sign without understanding the terms
A Tampa divorce lawyer will recommend that couples begin the prenup process at least 30 to 60 days before the wedding to avoid potential challenges based on timing or pressure.
Full and Fair Disclosure of Financial Information
Under §61.079(7)(a), a prenup may be deemed unconscionable and unenforceable if:
- One party was not provided a fair and reasonable disclosure of the other’s property or financial obligations,
- Did not voluntarily waive the right to disclosure in writing, and
- Did not have, or reasonably could not have had, adequate knowledge of the other’s financial condition.
Disclosure is one of the most litigated issues in prenup enforcement. It must be thorough and documented. Attachments listing assets, liabilities, income, and expected inheritances are standard practice.
A Tampa divorce lawyer will include these schedules as exhibits and ensure both parties sign off on their accuracy and completeness.
What Can Be Included in a Florida Prenup?
Florida Statutes §61.079(4) outlines what subjects a prenuptial agreement can cover. This includes:
- Rights to property owned before or acquired during the marriage
- The right to buy, sell, use, or transfer property
- How property will be distributed upon separation, divorce, or death
- Spousal support (alimony), including waiver or modification
- Ownership of life insurance policies
- Creation of a will or trust to carry out the agreement
- Choice of law governing the agreement
This list is broad, allowing couples to tailor agreements to their specific needs. For instance, a physician in Tampa may use a prenup to exclude their medical practice from equitable distribution. A real estate investor may want to preserve ownership of pre-marital rental properties.
A Tampa divorce lawyer will draft provisions addressing each client’s unique assets and concerns, ensuring clarity and enforceability.
What Cannot Be Included in a Florida Prenup?
There are some statutory and public policy limitations. Under §61.079(4)(a) and (b), a prenup cannot:
- Adversely affect a child’s right to support
- Predetermine child custody or parenting time
Florida courts reserve jurisdiction to decide these issues based on the child’s best interests at the time of the divorce. Any attempt to preemptively set custody arrangements or limit support rights will be deemed unenforceable.
A Tampa divorce lawyer will ensure that all child-related provisions are carefully worded or omitted to avoid invalidation of the agreement.
Waiver of Alimony in Prenuptial Agreements
Florida law permits the waiver or limitation of alimony in a prenup. However, such waivers can be challenged if they are unconscionable at the time of enforcement.
This means that even if the waiver was fair when signed, a court may refuse to enforce it if circumstances have changed dramatically and enforcing the waiver would leave one spouse destitute.
Courts consider:
- The length of the marriage
- Health and earning capacity of the parties
- Standard of living during the marriage
- Whether the spouse would be eligible for public assistance without alimony
A Tampa divorce lawyer can include sliding-scale alimony provisions, sunset clauses, or lump-sum settlements to offer flexibility while still protecting the higher-earning spouse.
Can a Prenup Be Changed After Marriage?
Yes. Under §61.079(5), a prenuptial agreement may be amended or revoked after marriage, but only by a written agreement signed by both parties. The amended agreement must still meet the basic enforceability requirements—voluntariness, written form, and full disclosure.
Common reasons for amending a prenup:
- Significant change in income or assets
- Birth of children
- New business ventures
- Change in estate planning goals
A Tampa divorce lawyer can draft a postnuptial agreement or amend the existing prenup to reflect the couple’s updated financial circumstances.
Prenups and the Florida Elective Share
Florida law allows surviving spouses to claim an “elective share” of a deceased spouse’s estate, even if the will says otherwise. This is governed by Florida Statutes §732.201–732.2155.
A valid prenuptial agreement may waive the right to the elective share, but the waiver must:
- Be in writing
- Be signed after fair disclosure
- Specifically reference the right to the elective share
A Tampa divorce lawyer familiar with both family law and estate law will ensure that the elective share waiver is enforceable and integrated into the overall financial plan.
Prenups and Homestead Rights in Florida
Under Florida’s homestead laws, a surviving spouse has certain rights to the family residence, even if the property is titled in one spouse’s name.
To waive homestead rights in a prenup, the agreement must:
- Clearly reference the waiver of homestead rights
- Be signed with full understanding of the rights being waived
A Tampa divorce lawyer will include a homestead waiver provision for clients who own real estate and want to retain sole control over its disposition in estate or divorce proceedings.
Choice of Law Provisions in Prenups
Florida permits couples to include a “choice of law” clause in their prenup, designating which state’s law will govern the agreement. This is particularly useful for couples who:
- Anticipate moving out of state
- Own property in multiple jurisdictions
- Maintain residency in different states at the time of marriage
However, Florida courts may disregard a foreign choice of law if the selected law conflicts with Florida’s public policy.
A Tampa divorce lawyer can ensure that the governing law provision is properly drafted and that Florida’s interests are considered if enforcement becomes an issue.
Remedies if a Prenup Is Challenged or Found Unenforceable
If a court finds part or all of a prenup invalid, it may:
- Enforce the remainder of the agreement
- Apply Florida’s equitable distribution and support laws
- Reopen litigation over property, alimony, and debt allocation
Even a partially invalid agreement can lead to years of costly litigation. A Tampa divorce lawyer will structure the agreement with severability clauses and enforceable fallback provisions to reduce risk.
FAQ: Florida Prenuptial Agreement Statutes for Tampa Couples
Do both parties need a lawyer for a prenup to be valid in Florida?
Not legally required, but strongly recommended. Courts are more likely to enforce a prenup when both parties had independent counsel.
What happens if we don’t disclose all assets before signing the prenup?
Failure to disclose can make the agreement unenforceable, especially if the undisclosed assets were significant or hidden in bad faith.
Can a prenuptial agreement waive alimony in Florida?
Yes, but the waiver must be clearly stated and not unconscionable at the time of enforcement.
How early should we sign a prenup before the wedding?
At least 30 days before the wedding is ideal to avoid claims of duress or coercion.
Can we agree in a prenup to share everything equally?
Yes. Prenups can specify equal division or waive claims entirely. The terms are customizable.
Do we have to file the prenup with the court?
No. Prenups are private contracts and do not need to be filed unless enforcement is sought in a divorce.
Can we revoke or change our prenup after marriage?
Yes. Amendments or revocations must be in writing and signed by both parties.
What if one of us moves to another state?
Include a choice-of-law provision to preserve Florida law as the governing framework.
Can a prenup determine who gets the house?
Yes. Real estate provisions are enforceable if clearly stated and supported by disclosure and signatures.
Can child support be waived in a prenup?
No. Florida law prohibits waiving or limiting child support in a prenuptial agreement.
Understanding the Florida statutes governing prenuptial agreements is critical for any Tampa couple seeking to enter marriage with clarity and protection. The stakes are high—especially for those with businesses, real estate, or complex finances. A properly drafted prenup can provide peace of mind, but a poorly constructed one can lead to years of costly litigation. A knowledgeable Tampa divorce lawyer will ensure every provision is legally sound, every asset is properly disclosed, and the final agreement is enforceable when it matters most.
The McKinney Law Group: Proven Legal Support for Divorce Matters in Tampa
Whether your divorce is amicable or contested, having the right legal team makes all the difference. At The McKinney Law Group, we deliver results-driven representation designed to secure your interests and restore your peace of mind.
We help with:
✔ Navigating Florida’s legal process for divorce
✔ Crafting enforceable parenting and support agreements
✔ Handling disputes over real estate, business interests, and high-value assets
✔ Filing for temporary relief or injunctions when necessary
✔ Supporting you through trial or mediation
Contact our Tampa office at 813-428-3400 or email [email protected].