Inheritances are often deeply personal assets, passed down through generations with the intention of preserving family wealth. Whether it’s a family business, real estate, or a carefully managed trust, the recipient of an inheritance typically wants to ensure that those assets remain protected and preserved—even in the event of divorce. In Florida, while inheritance is generally considered non-marital property, the lines can easily blur through commingling, transmutation, or other legal complexities.
The most reliable way to protect inherited assets is through a carefully drafted prenuptial or postnuptial agreement. These marital agreements allow spouses to predetermine the classification, use, and division of property—including inheritance—without relying on Florida’s equitable distribution statutes. When prepared and executed properly, a marital agreement can safeguard inheritance from claims during divorce and even provide additional protections in the event of death.
A Tampa divorce attorney experienced in drafting marital agreements can help clients define the legal status of inherited property, set expectations between spouses, and avoid expensive and emotionally charged litigation in the future. This article explores how inheritance can be protected through marital agreements in Florida, the legal standards for enforceability, and strategic considerations for families looking to preserve generational wealth.
How Florida Law Treats Inheritance Without an Agreement
Under Florida law, inheritance is generally considered non-marital property. Florida Statutes § 61.075(6) provides that “non-marital assets” include:
- Assets acquired by either party prior to the marriage;
- Assets acquired separately by gift, bequest, devise, or descent;
- Income derived from non-marital assets (unless commingled);
- Assets excluded from marital property by valid written agreement.
However, the classification of an inheritance can change if the receiving spouse:
- Deposits the inheritance into a joint account;
- Uses inherited funds to pay marital expenses;
- Titles real property jointly with their spouse;
- Mixes inherited funds with marital income or assets.
These actions can “commingle” the asset, causing it to lose its non-marital status and become subject to equitable distribution in divorce. A Tampa divorce attorney can help prevent this risk by documenting inheritance separately and using a marital agreement to preserve its character.
Why Marital Agreements Are Essential for Inheritance Protection
Prenuptial and postnuptial agreements are legally binding contracts that allow couples to:
- Define which assets are considered separate or marital;
- Waive or limit spousal rights to certain property;
- Set terms for alimony, asset division, and estate rights;
- Protect family wealth from being distributed in divorce.
For individuals expecting or receiving an inheritance, a marital agreement offers proactive legal protection by specifying:
- That the inheritance remains the separate property of the receiving spouse;
- That income or appreciation derived from the inheritance remains separate;
- That any commingling of funds does not transform the inheritance into marital property;
- That no claim may be made against the inheritance in a divorce proceeding.
A Tampa divorce attorney can draft specific provisions that address both existing and future inheritances, including how those assets will be treated throughout the marriage and in any eventual dissolution.
Key Clauses to Include in a Marital Agreement Protecting Inheritance
- Asset Identification and Classification
Clearly list any known or anticipated inheritances and classify them as separate property. Include descriptions, approximate values, and any associated income. - Future Inheritance Clause
Anticipated inheritances (e.g., from living parents or grandparents) should be addressed even if not yet received. A clause can state that any inheritance acquired by either party during the marriage remains their separate property. - Commingling Protection
Specify that placing inherited funds in a joint account or using them for marital purposes does not alter their separate status. This prevents accidental transmutation. - Waiver of Marital Interest
Include language where both parties waive any claim to the other’s inheritance, regardless of its form or use during the marriage. - Estate Planning Coordination
Ensure the agreement is consistent with wills, trusts, and beneficiary designations. Include clauses waiving elective share and homestead rights if the goal is to preserve inherited property for heirs. - Alimony Waiver or Limitations
Consider limiting or waiving alimony to prevent indirect claims against inherited wealth, especially in short- or moderate-term marriages. - Dispute Resolution Clause
Include a provision for mediation or arbitration if the agreement’s interpretation is contested, reducing the risk of prolonged litigation.
A Tampa divorce attorney will draft these clauses with clarity and specificity to withstand future challenges.
Prenuptial vs. Postnuptial Agreements: Which Is Better?
Both prenuptial and postnuptial agreements can protect inheritance, but timing and strategy matter.
- Prenuptial Agreements are signed before marriage and are presumed voluntary if properly executed. They are ideal when one party has known or expected inheritance prior to marriage.
- Postnuptial Agreements are signed after marriage. They are useful when an inheritance is received during the marriage or if the couple did not sign a prenup. Courts scrutinize postnups more closely due to the fiduciary duty spouses owe each other after marriage.
Regardless of which is used, both must meet legal requirements to be enforceable. A Tampa divorce attorney can assess which approach fits the client’s timing, relationship dynamics, and estate planning needs.
Legal Requirements for a Valid Marital Agreement in Florida
To ensure that a prenuptial or postnuptial agreement will be enforced, it must meet several key legal standards:
- Written and Signed
Oral agreements are not enforceable. The agreement must be in writing and signed by both parties. - Voluntary Execution
Each party must sign willingly, without coercion, fraud, or duress. Ample time to review the agreement before the wedding helps establish voluntariness. - Full Financial Disclosure
Each party must provide a fair and reasonable disclosure of their income, assets, debts, and liabilities. Omissions or misstatements can render the agreement invalid. - Fair and Reasonable Terms
While parties have broad discretion, the agreement must not be unconscionable. Courts will not enforce agreements that leave one spouse destitute or result from grossly unfair bargaining. - Independent Legal Counsel
Although not required by law, having separate attorneys improves enforceability and avoids claims of undue influence or misunderstanding.
A Tampa divorce attorney ensures that all legal requirements are met and that the agreement can stand up to court scrutiny if challenged.
Commingling: The Hidden Danger to Inheritance Protection
Even if an inheritance is initially classified as non-marital, it can become marital property through commingling. Common commingling scenarios include:
- Depositing inherited money into a joint account used for household expenses;
- Using inheritance to renovate the marital home or purchase joint property;
- Retitling inherited real estate in both spouses’ names;
- Paying off joint debt with inherited funds.
Once an asset is commingled, it may be presumed to be a gift to the marriage, making it subject to equitable distribution in divorce. A marital agreement can override this presumption by stating that any commingling is not intended to change the asset’s classification.
A Tampa divorce attorney can help structure accounts and transactions to avoid unintended consequences.
Appreciation in Inherited Property: Marital or Non-Marital?
Under Florida law, passive appreciation of non-marital property (e.g., increase in value of inherited stock) remains non-marital. However, active appreciation caused by marital labor or financial contributions can be considered marital.
Examples of active appreciation include:
- Managing inherited rental property during the marriage;
- Renovating or improving inherited real estate with marital funds;
- Using marital income to pay taxes, mortgage, or maintenance.
A marital agreement can specify that appreciation—whether passive or active—remains non-marital unless otherwise agreed. A Tampa divorce attorney will tailor this provision to the client’s risk tolerance and intent.
Trusts as an Inheritance Tool and Their Interaction with Marital Agreements
Many inheritances are structured through trusts to provide asset protection, tax advantages, or distribution control. When an inheritance is received through a trust, marital agreements must account for:
- Whether the trust is revocable or irrevocable;
- Whether the spouse is a beneficiary or trustee;
- Whether distributions are mandatory or discretionary.
Even if trust assets are technically separate, courts may impute income or consider distributions in alimony or support determinations.
A Tampa divorce attorney can coordinate with trust counsel to ensure the marital agreement accounts for current and future interests and avoids legal ambiguities.
Homestead and Elective Share Waivers
Florida’s constitution and probate code provide surviving spouses with strong rights, including:
- The elective share (30% of the elective estate);
- Homestead rights (life estate or 50% interest in the marital home).
These rights can override estate planning if not properly waived. A marital agreement can include enforceable waivers of these rights, ensuring that inherited property passes as intended under the will or trust.
A Tampa divorce attorney ensures that these waivers are properly drafted and consistent with the client’s broader estate plan.
Alimony and Inheritance: Indirect Risk
While inheritance is not subject to equitable distribution, it can still affect alimony. Courts consider the receiving spouse’s financial resources when evaluating alimony need or ability to pay.
If inheritance provides income or supports a higher standard of living, it may:
- Reduce the recipient spouse’s need for support;
- Increase the payor spouse’s ability to contribute;
- Influence the amount or duration of alimony.
A marital agreement can waive or limit alimony to prevent indirect exposure of inherited wealth. A Tampa divorce attorney will advise on how to structure alimony clauses to protect future assets.
Special Considerations for Family-Owned Businesses
Inheritances often include ownership interests in family businesses. Without a marital agreement, those interests may be:
- Deemed marital if increased in value due to marital effort;
- Subject to equitable distribution if commingled;
- Disrupted by litigation or forced buyouts during divorce.
A marital agreement can:
- Preserve family ownership;
- Prevent claims against future appreciation;
- Prohibit involvement of a non-family spouse in the business.
A Tampa divorce attorney will work with business valuation experts and accountants to craft language that preserves both ownership and operational integrity.
Enforcing Marital Agreements in Divorce Litigation
When divorce occurs, the court will review the marital agreement and enforce its terms if valid. Common challenges to enforcement include:
- Claims of coercion or duress;
- Allegations of inadequate disclosure;
- Unconscionable or one-sided terms;
- Inconsistencies with other legal documents.
A Tampa divorce attorney will defend the agreement by presenting evidence of voluntariness, independent counsel, and fair disclosure. If needed, they may also seek court clarification or enforcement through motion practice or trial.
Updating Marital Agreements Over Time
Life changes. Relationships evolve. Inheritances increase or change form. For this reason, prenuptial and postnuptial agreements should be reviewed regularly and updated when:
- A new inheritance is received;
- Significant financial changes occur;
- Children are born or adopted;
- Estate plans are modified.
Amendments must be in writing and signed with the same formalities as the original agreement. A Tampa divorce attorney can assist with periodic reviews and updates to ensure the agreement remains enforceable and effective.
FAQ: Protecting Inheritance with Marital Agreements in Florida
Is inheritance always non-marital property in Florida?
Not automatically. Inheritance starts as non-marital, but it can become marital through commingling or use for marital purposes. A marital agreement preserves its non-marital status.
Can I protect a future inheritance in a prenuptial agreement?
Yes. A properly drafted agreement can specify that any inheritance received during the marriage remains separate, even if not yet received.
What if I already inherited money during the marriage?
A postnuptial agreement can be used to protect inherited assets after marriage. Timely execution is important to avoid claims of coercion.
Does placing inherited funds in a joint account make them marital?
Yes. Commingling can convert non-marital property into marital property. A marital agreement can override this presumption.
Can I use a marital agreement to protect a family business I inherited?
Yes. A marital agreement can preserve your interest in a family business and prevent your spouse from gaining a claim during divorce.
Will a marital agreement protect my inheritance from alimony claims?
It can help. A well-drafted agreement can waive or limit alimony, reducing the risk that your inheritance will fund future support.
What happens if the agreement conflicts with my estate plan?
Conflicts can create litigation. A Tampa divorce attorney can coordinate your marital agreement and estate documents to ensure consistency.
Do both spouses need their own attorney to sign a marital agreement?
It’s not legally required, but it is strongly recommended. Independent counsel enhances enforceability and protects both parties.
Can we amend our marital agreement later if needed?
Yes. You can amend a prenuptial or postnuptial agreement at any time, as long as both parties agree in writing.
Should I use a Tampa divorce attorney to draft a marital agreement?
Yes. Protecting inheritance requires experience with Florida’s family and estate laws. A Tampa divorce attorney ensures that your agreement is enforceable, precise, and aligned with your goals.
Conclusion
Inheritance is a legacy—one that deserves to be protected with thoughtful planning and legally sound agreements. In Florida, even though inheritances are initially considered non-marital property, they can easily become subject to division without proactive measures. Marital agreements, whether prenuptial or postnuptial, offer a flexible and enforceable way to preserve inherited wealth, clarify financial expectations, and prevent costly disputes in the event of divorce.
For families and individuals in Tampa, a well-drafted marital agreement can safeguard not just assets, but peace of mind. With the guidance of a skilled Tampa divorce attorney, you can structure an agreement that honors your intentions, protects your legacy, and ensures fairness for everyone involved—now and in the future.
The McKinney Law Group: Experienced Divorce Attorneys in Tampa for Every Type of Case
Whether your divorce involves property, children, support, or all of the above, we’re here to help. At The McKinney Law Group, we offer versatile legal support for Tampa clients dealing with a wide range of divorce circumstances.
We assist with:
✔ Contested and uncontested divorce filings
✔ Parenting plan development and child support
✔ Spousal support tailored to your financial situation
✔ Equitable property division and debt resolution
✔ Guidance for individuals with or without prenuptial agreements
Call 813-428-3400 or email [email protected] to get started on the right path.