Florida Postnuptial Agreement Template

A Florida postnuptial agreement is a legally binding contract between two married individuals detailing the allocation of marital assets in the event of divorce or death. It offers couples a structured means to address financial matters and protect their individual interests.

Distinct from prenuptial agreements (or prenups), which are signed before marriage, postnuptial agreements (or postnups) are arranged after the wedding ceremony, often years into the marriage. However, if the agreement is formulated in anticipation of an impending divorce, it may be termed a separation agreement, subject to different legal requirements.

Legal Considerations

While there isn’t a specific chapter in the Florida Statutes solely dedicated to postnuptial agreements, they are recognized and enforced under state law. The main provisions come from Section 61.079, which deals with premarital agreements.

Case law suggests that postnups should be evaluated using the same standards applied to prenups (Belcher v. Belcher, 271 So. 2d 7 (Fla. 1972)). However, these precedents were established prior to Florida’s enactment of new laws governing prenuptial agreements.

Nonetheless, recent cases following the implementation of these new laws have continued to reference the earlier precedents when assessing postnups (Stephanos v. Stephanos, 299 So. 3d 37 (Fla. Dist. Ct. App. 2020)).

• Signing Requirements: For the agreement to be valid, signatures from both parties are required (Casto v. Casto, 508 So. 2d 330 (Fla. 1987)).
• Dividing Property: Equitable division (§ 61.075).

Asset and Property Rights

Property Ownership

• Sections 732.216 [1] and 732.228 [2] allow married individuals to sever or modify their interests in property covered by these sections.
• Reinvesting property covered by these sections into real property, which is or becomes homestead property, creates a conclusive presumption of agreement by the spouses to terminate the community property attribute of the reinvested property. [3]

Capacity to Contract

• Postnuptial agreements addressing alimony and marital property are enforceable in dissolution proceedings.
• Challenges to the validity of these agreements may be raised if they were executed under circumstances involving fraud, deceit, duress, coercion, misrepresentation, or overreaching. Additionally, if one spouse fails to disclose or provides insufficient financial information to the other, it may create a presumption of inadequacy in the agreement.

Marriage and Divorce

Waiver of Rights

• Spousal rights, including the right to an elective share, intestate share, pretermitted share, homestead, exempt property, family allowance, and preference in appointment as personal representative, can be waived through a written contract, agreement, or waiver, signed by the waiving party in the presence of two subscribing witnesses. [4]
• Each spouse must make a fair disclosure of their estate to the other if the agreement, contract, or waiver is executed after marriage. Disclosure is not required for agreements executed before marriage.

Estate Planning and Inheritance

Inheritance Rights

• A surviving spouse who marries after making a will is entitled to a share of the estate similar to that of intestacy, unless addressed in a prenuptial or postnuptial agreement, provided for in the will, or if the will expressly excludes provision for the spouse. [5]
• The allocation for the pretermitted spouse is determined according to Section 733.805 [6] of the statutes.

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1. § 732.216. http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0732/Sections/0732.216.html
2. § 732.228. http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0732/Sections/0732.228.html
3. § 732.225. http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0732/Sections/0732.225.html
4. § 732.702. http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0732/Sections/0732.702.html
5. § 732.301. http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0732/Sections/0732.301.html
6. § 733.805. http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0733/Sections/0733.805.html

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