Marriage later in life is more common than ever, and Florida sees more of it than almost anywhere in the country. Widowed and divorced retirees meet at church, on the golf course, through friends, or online, and many decide they want to share the next chapter with someone new. These marriages often bring real companionship and joy. They also bring a set of legal and financial questions that look very different from those facing a couple in their twenties or thirties.
A couple marrying at 67 is rarely building wealth together from scratch. Each person usually arrives with a lifetime of assets: a paid-off home, retirement accounts, pensions, investment portfolios, life insurance, perhaps a family business or rental property. Just as important, each person often has adult children and grandchildren who expect, reasonably, that a parent’s estate will eventually pass to them. A new marriage can change that expectation in ways many people do not realize until it is too late.
Florida law gives a surviving spouse significant rights in a deceased spouse’s estate, including rights that can override a will. Remarriage can also affect Social Security, pension survivor benefits, alimony from a prior marriage, and eligibility for long-term care assistance. A well-drafted prenuptial agreement is one of the most effective ways for retirees to address these issues directly, protect their families, and enter the marriage with clarity instead of uncertainty.
Why Do Late-in-Life Marriages Need a Different Kind of Prenup?
Most people associate prenuptial agreements with divorce. For younger couples, the main concern is often what happens if the marriage ends: how to divide property acquired during the marriage, whether alimony will be paid, and how to protect a growing business. Those issues still matter for older couples, but the emphasis shifts.
For retirees, the more likely way a marriage ends is the death of a spouse. That reality moves estate planning to the center of the agreement. The key questions become who inherits the house, what happens to each spouse’s retirement savings, whether the surviving spouse can remain in the home, and how to make sure each spouse’s children receive what their parent intended.
Late-in-life marriages also tend to involve more complex asset pictures. Retirees may hold assets that are difficult to divide or value, such as pensions with survivor options, deferred compensation, annuities, closely held businesses, or real estate in more than one state. They may also have income streams, like Social Security and required minimum distributions, that interact with marital status in specific ways.
Finally, the stakes for family relationships are high. Adult children sometimes worry that a parent’s new spouse will inherit assets that were built with the children’s other parent. Clear planning can ease those concerns and protect relationships across both families. A thoughtful Florida prenup attorney approaches these agreements with all of these factors in mind, rather than simply applying a template built for younger couples.
How Does Remarriage Affect Social Security Benefits?
Social Security is one of the most misunderstood issues in late-life marriage. Because it is a federal program, its rules are set by federal law and the Social Security Administration, not by Florida courts or by the terms of a prenuptial agreement. A prenup cannot waive, transfer, or reassign anyone’s Social Security benefits. What it can do is help couples plan around the way marriage changes those benefits.
Survivor benefits from a prior marriage. A widow or widower who remarries at age 60 or older (age 50 or older if disabled) generally keeps eligibility for survivor benefits based on the deceased spouse’s work record. Remarriage before age 60 generally ends that eligibility, although it may be restored if the later marriage ends. For some retirees, the timing of a wedding can make a meaningful difference in monthly income.
Divorced spouse benefits. A person who was married for at least ten years and then divorced may be able to collect benefits based on a former spouse’s record. Remarriage generally ends eligibility for those divorced spouse benefits. Retirees who rely on a former spouse’s record should understand the impact before remarrying.
Spousal and survivor benefits in the new marriage. A new spouse may eventually become eligible for spousal benefits on the other spouse’s record, typically after the marriage has lasted at least one year. Survivor benefits for a new spouse generally require that the marriage lasted at least nine months before the worker’s death, with limited exceptions. These rules can create new benefits for a lower-earning spouse.
Divorce and Social Security. In a Florida divorce, Social Security benefits are not divided as marital property because federal law governs them. However, Social Security income can be considered when a court evaluates alimony and each spouse’s financial circumstances.
Needs-based programs. Supplemental Security Income, which is different from retirement benefits, is based on financial need. Marriage can affect SSI eligibility because a spouse’s income and resources may be counted.
Because a prenup cannot change these federal rules, the agreement should be drafted with them in mind. For example, if one spouse will lose survivor benefits from a prior marriage by remarrying, the couple may want the agreement to address how household expenses will be shared, or whether the other spouse will provide life insurance to replace lost income. Coordinating the agreement with a clear understanding of Social Security helps avoid unpleasant surprises.
What Rights Does Florida Give a Surviving Spouse?
Many retirees assume that a will or trust leaving everything to their children will be followed exactly as written. In Florida, that is not necessarily true once there is a surviving spouse. Florida’s Probate Code provides a surviving spouse with several rights that exist regardless of what the will says, unless those rights are waived.
The elective share. Under Sections 732.201 through 732.2155 of the Florida Statutes, a surviving spouse may elect to take 30 percent of the deceased spouse’s “elective estate.” The elective estate is broader than the probate estate. It can include assets held in a revocable trust, jointly held property, payable-on-death and transfer-on-death accounts, retirement accounts, and certain other transfers. As a result, a parent who carefully placed everything in a trust for the children may still find that a new spouse is entitled to nearly a third of the combined value.
Pretermitted spouse rights. If a person makes a will before marriage and then marries without updating it, Section 732.301 generally allows the new spouse to receive the share they would have received if the decedent had died without a will. That can be a substantial portion of the estate. This right does not apply when the spouse is provided for in the will or in a prenuptial agreement, or when the spouse has waived the right.
Intestate share. When there is no will at all, Florida’s intestacy statute gives the surviving spouse a significant share. If the decedent has children from a prior relationship, the surviving spouse typically receives one-half of the intestate estate, with the balance passing to the decedent’s descendants.
Exempt property and family allowance. A surviving spouse may be entitled to certain exempt property, such as household furnishings and vehicles up to statutory limits, and to a family allowance during estate administration.
Preference to serve as personal representative. When there is no will naming a personal representative, Florida law gives the surviving spouse a preference to serve. That can place a new spouse in charge of administering an estate that will largely pass to the decedent’s children, which can create friction.
The important point is that Section 732.702 allows spouses and prospective spouses to waive these rights in writing. A prenuptial agreement is the most common place to do so. Notably, a waiver signed before marriage does not require financial disclosure under that statute, while a waiver signed after marriage does require fair disclosure. Even so, careful attorneys usually recommend full disclosure in every late-life prenup, both because divorce provisions in the same agreement require it and because disclosure strengthens the agreement against later challenges.
How Does Florida Homestead Law Affect Remarried Retirees?
Florida’s homestead protections are among the strongest in the country, and they can produce unexpected results for remarried couples. For many retirees, the home is the single most valuable asset they own, and it is often the asset their children most expect to inherit.
Under Article X, Section 4 of the Florida Constitution, a homeowner who is survived by a spouse or a minor child is restricted in how the homestead may be passed at death. If there is a surviving spouse and no minor child, the homestead generally may only be devised to the spouse. If the owner attempts to leave the home to adult children instead, the restriction can override that plan.
When homestead property is not validly devised, Section 732.401 generally gives the surviving spouse a life estate in the home, with the remainder passing to the decedent’s descendants. Alternatively, the surviving spouse may elect, within a limited time, to take an undivided one-half interest in the property as a tenant in common, with the other half passing to the descendants. Either outcome can leave adult children sharing ownership of a parent’s home with a stepparent, sometimes for many years.
Homestead rules also affect what happens during the marriage. Florida generally requires a spouse to join in a deed or mortgage of homestead property, even if the other spouse is the sole titled owner. A retiree who wants to sell the home, refinance it, or transfer it into a trust may need the new spouse’s signature.
These protections can be waived. Under Section 732.702, a spouse or prospective spouse may waive homestead rights in writing, and a prenuptial agreement is a natural place to do so. Many late-life agreements take a middle path. For example, the agreement might waive the spouse’s homestead rights but grant the surviving spouse the right to live in the home for a set period, such as one year, or for life, while the children receive ownership. Other couples provide that the surviving spouse receives a cash payment or life insurance proceeds in exchange for the waiver. The right approach depends on where each spouse will live, who owns the home, and what each spouse wants for the other after death.
How Can a Prenup Protect Your Adult Children’s Inheritance?
Protecting children from a prior marriage is often the main reason retirees seek out a Tampa prenup lawyer. The goal is usually not to disinherit the new spouse, but to make sure each spouse’s estate passes the way that spouse intends. A prenuptial agreement can accomplish this in several ways.
Defining separate property. The agreement can confirm that each spouse’s premarital assets, and the income and appreciation on those assets, remain separate. This matters both in a divorce and at death. It also helps prevent accidental mixing of assets, such as when separate funds are deposited into a joint account or used to improve a jointly titled home.
Waiving or limiting spousal inheritance rights. As discussed above, the agreement can waive the elective share, pretermitted spouse rights, intestate share, homestead rights, exempt property, family allowance, and the preference to serve as personal representative. Couples may waive all of these rights or only some of them.
Providing for the surviving spouse on agreed terms. Many couples do not want a complete waiver. They want to provide for each other in a defined way. The agreement can require each spouse to leave the other a specific dollar amount, a life insurance policy, a right to live in the home, or income from a trust for life with the remainder passing to the children. This kind of structure balances care for the spouse with protection for the children.
Addressing joint assets created during the marriage. Couples often open a joint account for shared expenses or buy a new home together. The agreement can state how those joint assets will pass at death and how they will be divided in a divorce.
Protecting family heirlooms and businesses. Jewelry, artwork, collections, and interests in family businesses often carry emotional significance for children. The agreement can identify these items and confirm they remain in the family.
A prenup does not replace an estate plan. It sets the rules, but each spouse still needs a will, trust, and updated beneficiary designations that match the agreement. If the prenup says a retirement account will go to the children, but the beneficiary form still names someone else, the form may control. Coordinating the prenup with the estate plan, ideally with both documents reviewed at the same time, is one of the most important steps in the process.
How Are Retirement Accounts and Pensions Handled?
Retirement assets deserve special attention in any late-life prenup because different types of accounts follow different rules, and some of those rules come from federal law.
Employer plans governed by ERISA. Many 401(k) plans, pensions, and other employer-sponsored retirement plans are governed by the Employee Retirement Income Security Act. Under ERISA and related tax rules, a spouse often has automatic rights to survivor benefits or to be named beneficiary, and those rights can only be waived by the spouse, in writing, with specific formalities such as notarization or a plan representative’s witness. Courts have generally held that a prenuptial agreement signed before the wedding cannot serve as a valid ERISA waiver because the person signing it was not yet a spouse. For that reason, a well-drafted agreement typically requires each spouse to sign the plan’s own waiver forms promptly after the marriage. Without that follow-up step, the new spouse may be entitled to the account or survivor benefit despite the prenup.
Individual retirement accounts. Traditional and Roth IRAs are generally not governed by ERISA’s spousal consent rules. The beneficiary designation form usually controls who receives the account at death. A prenup can confirm that each spouse’s IRA is separate property and that the owner may name the children as beneficiaries, and the spouse can waive any claim to the account under Florida’s elective share.
Pensions with survivor options. Some retirees are already receiving a pension and elected a payment option years ago. Others have not yet chosen. The choice between a single-life annuity and a joint and survivor annuity can have a major financial impact on a new spouse. The agreement can address whether the new spouse will receive survivor benefits and, if not, whether the spouse will receive other assets or life insurance instead.
Government and military retirement. Federal, state, and military retirement systems have their own rules on survivor benefits and spousal elections. These should be reviewed specifically rather than assumed to match private plans.
Contributions during the marriage. For couples still working, contributions made during the marriage are generally marital property in a Florida divorce. The agreement can state whether those contributions and their growth will remain separate. For retirees taking required minimum distributions, the agreement can confirm that distributions from separate accounts remain separate property.
Does Alimony Still Matter When Both Spouses Are Retired?
It is easy to assume alimony is irrelevant when both spouses are living on fixed incomes. In practice, alimony can still be a significant issue, especially when one spouse has substantially greater income or assets than the other.
Florida’s 2023 alimony reform changed the rules considerably. The legislation eliminated permanent alimony for new cases and set limits on durational alimony tied to the length of the marriage. Under the current statute, durational alimony generally cannot exceed 50 percent of the length of a short-term marriage (under 10 years), 60 percent of a moderate-term marriage (10 to 20 years), or 75 percent of a long-term marriage (20 years or more). Many late-life marriages will fall into the short-term category if they end in divorce, but even a few years of support payments can be meaningful to a retiree on a fixed income.
Remarriage can also affect alimony a person is receiving from a prior marriage. In Florida, alimony typically terminates when the recipient remarries. A retiree who receives support from a former spouse should understand that remarriage will likely end those payments, and should plan for that change before the wedding.
An alimony prenup in Tampa can address spousal support directly. The agreement may waive alimony entirely, cap it at a certain amount, limit its duration, or tie it to specific conditions. Florida law gives couples meaningful freedom here, with one important safeguard. Under Section 61.079, if eliminating or modifying spousal support would cause one spouse to become eligible for public assistance at the time of separation or divorce, the court may require the other spouse to provide support to the extent needed to avoid that result. In other words, a waiver cannot be used to leave a spouse dependent on public benefits.
For retirees, alimony provisions often work best when they are paired with estate provisions. A couple might agree that neither will pay alimony if they divorce, but that each will leave the other a defined amount if they remain married until death. This approach reflects the reality that the marriage is most likely to end by death, while still offering predictability if it does not.
Can a Prenup Protect Assets From Long-Term Care Costs?
Long-term care is one of the largest financial risks facing retirees, and it is an area where many couples overestimate what a prenup can do.
Florida Medicaid, including its long-term care programs, evaluates eligibility using federal and state rules that look at the combined resources of a married couple. When one spouse applies for Medicaid long-term care, the assets of both spouses are generally counted, regardless of whose name the assets are in and regardless of what a prenuptial agreement says. Medicaid rules do allow the healthy spouse, often called the community spouse, to keep a protected amount of resources and income, but the prenup itself does not wall off one spouse’s assets from the eligibility calculation.
That does not mean the prenup is irrelevant to long-term care planning. It can still address several practical questions:
The agreement can state whether each spouse will be responsible for their own care costs from their own separate assets, which provides a framework for how the couple intends to handle care expenses privately.
The agreement can require each spouse to maintain long-term care insurance, if available and affordable, so that care costs are less likely to deplete either spouse’s estate.
The agreement can address what happens to the home if one spouse moves into assisted living or a nursing facility while the other remains there.
The agreement can be coordinated with elder law planning, which may involve strategies that are separate from the prenup itself.
Because Medicaid rules are complex and change over time, couples with meaningful long-term care concerns should consult with an elder law attorney in addition to their family law counsel. The prenup and the long-term care plan should work together rather than rely on assumptions that may not hold up when care is needed.
Who Makes Medical and Financial Decisions if You Become Incapacitated?
For older couples, incapacity is a real possibility that deserves as much attention as death or divorce. Marriage can change who has authority to make decisions if a person can no longer make them independently.
Under Florida’s health care advance directive law in Chapter 765, if a person has not designated a health care surrogate, the law sets a priority list for who may serve as a health care proxy. A spouse is near the top of that list, ahead of adult children. For some families, that is exactly what they want. For others, particularly when a parent has been married only a short time, adult children may expect to be involved in medical decisions and may be surprised to learn the new spouse has priority.
Financial decision-making works differently. A spouse does not automatically have authority to manage the other spouse’s separate accounts or property. Without a durable power of attorney under Chapter 709, a family may need to seek a guardianship, which is time-consuming, expensive, and public.
A prenup can express each spouse’s intentions on these issues, but the agreement itself is not a substitute for the proper documents. Each spouse should sign a designation of health care surrogate, a living will, and a durable power of attorney that reflect the plan the couple has agreed on. Some couples name each other. Others name an adult child for financial matters and a spouse for health care, or require both to work together. The key is making these choices intentionally rather than leaving them to default rules.
The agreement can also address practical questions, such as whether a spouse acting under a power of attorney may transfer one spouse’s separate assets to the other, and how care costs will be paid if one spouse becomes incapacitated. These provisions can reduce the risk of conflict between a new spouse and adult children during an already difficult time.
How Do You Make Sure a Late-Life Prenup Holds Up?
A prenuptial agreement is only valuable if it will be enforced when it matters. For late-life agreements, challenges often come from a different direction than they do for younger couples. Instead of a spouse challenging the agreement in a divorce, the challenge may come years later from a surviving spouse, or from adult children, during probate. The agreement should be built to withstand scrutiny from either side.
Meet Florida’s statutory requirements. Under Section 61.079, a premarital agreement must be in writing and signed by both parties. A court may refuse to enforce it if the challenging party proves that it was not signed voluntarily, that it resulted from fraud, duress, coercion, or overreaching, or that it was unconscionable when signed and the challenging party did not receive fair and reasonable financial disclosure, did not waive disclosure in writing, and did not have adequate knowledge of the other’s finances. Florida courts have long applied similar principles, including in the Florida Supreme Court’s decision in Casto v. Casto.
Provide complete financial disclosure. Each spouse should provide a detailed written disclosure of assets, liabilities, and income, attached to the agreement as an exhibit. For retirees, this should include retirement accounts, pensions, annuities, life insurance, real estate, business interests, and any expected inheritances or trust interests.
Allow plenty of time. An agreement presented shortly before the wedding invites claims of pressure. Beginning the process several months in advance and signing well before the ceremony helps demonstrate that both spouses entered the agreement freely.
Have independent counsel for each spouse. Separate attorneys are not strictly required in Florida, but they are one of the strongest protections against a later challenge. Each spouse should have a lawyer who represents only that spouse’s interests.
Address capacity. Capacity is a more common issue in late-life agreements. If either spouse has health conditions that could later raise questions about their understanding, the attorneys may recommend documenting capacity at the time of signing, such as through a physician’s letter or a recorded signing conference.
Keep adult children out of the negotiation. It is natural for children to have opinions, but their direct involvement can create the appearance of undue influence. The agreement is stronger when the spouses negotiate it through their own attorneys.
Include a severability clause and review it periodically. If one provision is found unenforceable, severability helps the rest survive. Couples should also review the agreement after major life changes, such as the sale of a home or a significant inheritance, and consider a postnuptial agreement if updates are needed.
How Should You Talk to Your Adult Children About a Prenup?
Adult children often have strong feelings about a parent’s remarriage, and those feelings may include worries about inheritance. Open, well-timed communication can prevent misunderstandings and protect family relationships for years to come.
Many retirees find it helpful to share the general outline of their plan with their children once the agreement is finalized. It is not necessary to disclose every financial detail. Simply explaining that a prenuptial agreement is in place, that each parent’s estate will pass according to that parent’s wishes, and that the new spouse has been provided for in a defined way can go a long way toward easing tension.
It is equally important to be fair to the new spouse in those conversations. Children should understand that the agreement reflects decisions both spouses made together, and that it is not a statement of distrust. When both families understand the plan, the surviving spouse and the stepchildren are less likely to end up in a probate dispute after a death.
Some couples also choose to meet with their estate planning attorney together, and later with their children, to walk through how the estate plan works. This can be especially useful when a surviving spouse will receive a life estate in a home or income from a trust, because those arrangements require the spouse and the children to cooperate for years.
The timing of these conversations matters. Discussing the plan after the agreement is signed, rather than during negotiations, helps preserve the independence of each spouse’s decisions and avoids any suggestion that the children shaped the terms.
When Should Retirees Talk to a Tampa Prenup Lawyer?
The ideal time to begin is as soon as the couple starts discussing marriage, and at least several months before the wedding. Late-life agreements often involve more documents, more accounts, and more coordination with estate planning than agreements for younger couples, so they typically take longer to complete.
Before the first meeting, it helps to gather recent statements for bank, investment, and retirement accounts, pension and Social Security benefit statements, deeds and mortgage information, life insurance policies, existing wills and trusts, and any prior divorce judgments or marital settlement agreements. Documents from a prior marriage are especially important because they may contain ongoing obligations, such as alimony or life insurance requirements, that affect the new agreement.
Working with a Tampa prenuptial agreement attorney who understands both family law and the estate planning issues unique to retirees helps ensure the agreement accomplishes what the couple intends. An attorney familiar with Hillsborough County courts and Florida probate practice can anticipate how the agreement may be reviewed in a divorce or after a death, and draft accordingly. Many late-life agreements are most effective when the family law attorney and each spouse’s estate planning attorney coordinate so that the prenup, wills, trusts, and beneficiary designations all say the same thing.
A late-in-life marriage is a meaningful commitment, and a prenup is not a sign of doubt about that commitment. For many retirees, it is a way to honor both the new relationship and the family they have already built. With the right planning, each spouse can care for the other while making sure children and grandchildren receive what their parent intended.
Frequently Asked Questions
Can a prenup protect my children’s inheritance in Florida?
Yes. A Florida prenuptial agreement can waive a new spouse’s elective share, homestead rights, pretermitted spouse rights, and other inheritance rights under Section 732.702. It can also provide for the new spouse in a defined way while preserving the rest of the estate for your children. The prenup should be coordinated with your will, trust, and beneficiary designations so that every document works together.
Will remarrying cause me to lose Social Security survivor benefits?
It depends on your age. A widow or widower who remarries at age 60 or older generally keeps eligibility for survivor benefits from the deceased spouse’s record, while remarriage before 60 generally ends that eligibility. Because these rules are set by federal law, a prenup cannot change them, but it can help you plan around any lost income.
Can a prenup waive Social Security benefits?
No. Social Security benefits are governed by federal law, and a prenuptial agreement cannot waive, transfer, or divide them. A prenup can, however, address other financial arrangements that take Social Security into account, such as how household expenses will be shared.
Can my new spouse inherit my Florida home even if my will leaves it to my children?
Possibly. Florida’s homestead laws restrict how a home may be left at death when the owner is survived by a spouse, and a surviving spouse may receive a life estate or a one-half interest despite the will. A prenuptial agreement can waive these homestead rights, and many couples replace them with a limited right for the surviving spouse to remain in the home.
Does a prenup protect my 401(k) from a new spouse?
Not on its own. Federal law generally requires a spouse to waive rights to employer retirement plans, and courts have held that a waiver signed before marriage does not satisfy that requirement. A well-drafted prenup should require the new spouse to sign the plan’s waiver forms after the wedding.
Is alimony still an issue if we are both retired?
It can be, particularly if one spouse has significantly more income or assets. Florida’s 2023 alimony reform eliminated permanent alimony and limited durational alimony based on the length of the marriage. An alimony prenup in Tampa can waive or limit support, although a court may still require support if a waiver would leave a spouse eligible for public assistance.
Will a prenup protect my assets if my spouse needs nursing home care?
Generally not for Medicaid purposes. Medicaid typically counts the combined assets of both spouses when determining long-term care eligibility, regardless of a prenuptial agreement. Couples concerned about long-term care costs should work with an elder law attorney in addition to their family law counsel.
Should my adult children be involved in negotiating my prenup?
It is usually best to keep them out of the negotiation. Direct involvement by children can create the appearance of undue influence, which may give a surviving spouse grounds to challenge the agreement later. Many retirees share the general plan with their children after the agreement is signed.
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.