Signed, Sealed…Disclosed? Navigating Marital Agreements in Florida
By: Karen Arguelles-Velazquez, Esq.
This month, RMZ Law dove deep into the world of marital agreements – prenuptial and postnuptial – and came away with some surprising insights about a topic that often gets glossed over: financial disclosure. While these agreements may seem similar in purpose, the rules around transparency can differ dramatically depending on when the agreement is signed.
Prenuptial Agreements: Disclosure Is Not Always Required
It’s a common assumption that full financial disclosure is a must for a prenuptial to be valid. But in Florida, that’s not necessarily the case. Florida law does not require full and frank financial disclosure for prenuptial (premarital) agreements to be enforceable. Under Florida Statute § 61.079, a premarital agreement can still be valid even without complete disclosure, unless:
The agreement was a product of fraud, duress, coercion, or overreaching, or
The agreement was unconscionable when executed, and the party against whom enforcement is sought can prove:
They were not provided a fair and reasonable disclosure of the other party’s property or financial obligations;
They did not voluntarily and expressly waive, in writing, any right to disclosure beyond what was provided; and
They did not have, and reasonably could not have had, adequate knowledge of the other party’s property or financial obligations.
* Key Takeaway: While disclosure is not automatically required for prenups, the safest practice is to provide it. Lack of disclosure can make an agreement vulnerable to challenges if it is later deemed unconscionable.
Postnuptial Agreements: Disclosure Is Mandatory
For postnuptial agreements (agreements executed after marriage), Florida law is much stricter. Full and fair disclosure is required for the waiver of spousal rights to be enforceable. This is codified in Florida Statute § 732.702(2), which states: “Each spouse shall make a fair disclosure to the other of that spouse’s estate if the agreement, contract, or waiver is executed after marriage. No disclosure shall be required for an agreement, contract, or waiver executed before marriage.”
* Practical Impact: If a postnuptial agreement attempts to waive spousal rights (such as inheritance or elective share) without full disclosure, it will not be enforceable. This is a crucial distinction from prenuptial agreements.
Waivers of Spousal Rights Under Florida Statute § 732.702
Florida Statute § 732.702 allows spouses to waive, in whole or in part, rights such as the elective share (a portion of the deceased spouse’s estate), intestate share (inheritance when there’s no will), pretermitted share (protection for spouses accidentally omitted from a will), homestead rights (protection of the family home), exempt property (household items and personal effects), family allowance (funds for maintenance during probate), any claims under the Florida Uniform Disposition of Community Property Rights at Death Act, and the preference in appointment as personal representative of an intestate estate.
Such waivers must be made by written agreement, signed by the waiving party in the presence of two subscribing witnesses, either before or after marriage. Timing matters when it comes to disclosure. Under Florida law, postnuptial agreements require each spouse to provide a fair disclosure of their estate for any waiver of spousal rights to be valid. In contrast, prenuptial agreements do not require disclosure to be enforceable, unless later challenged for being unconscionable or a product of fraud, duress, coercion, or overreaching. This distinction means postnuptial agreements are held to a higher standard of transparency, while prenups allow more flexibility.
Practical Tips:
Prenuptial Agreements: Florida doesn’t require financial disclosure for a prenuptial agreement to be valid, but skipping it can invite problems down the road. It’s best to disclose – or at the very least, include a written waiver if you don’t.
Postnuptial Agreements: Here, disclosure isn’t optional. Both parties need to be transparent about their finances. Otherwise, the agreement will be rendered unenforceable.
Waivers of Spousal Rights: Understand exactly what rights are being waived and ensure all statutory requirements are met-especially regarding disclosure for waivers.
Conclusion
Understanding the nuanced differences in disclosure requirements and the ability to waive spousal rights under Florida law is essential for anyone considering a marital agreement. While prenuptial agreements offer more flexibility regarding disclosure, postnuptial agreements demand transparency. Taking the time to get it right, and working with an attorney who knows the nuances, can save you from costly disputes down the road.
Contact us at (954)462-1431 to speak with an attorney.