Prenuptial Agreements

Obtaining a Prenuptial Agreement, also referred to as Premarital Agreement or “Prenup”, can be an essential step to protect your rights before and during marriage. In today’s society, many people are coming to marriages with children from another relationship, substantial educations, established careers and earnings, and substantial premarital assets. Protecting your children and assets is a very legitimate concern. Prenuptial Agreements will determine how certain assets and liabilities will be distributed should the marriage end in divorce or from your death. In addition, the Prenuptial Agreement can resolve all Alimony/Spousal Support issues prior to the marriage.

What Happens Without a Prenup?

Marital Assets Without a Prenuptial Agreement:

Pursuant to Florida law, marital property is defined as all assets obtained during the marriage regardless of how those assets are titled. Although there are some exceptions such as inheritance and gifts from outside of the marriage, virtually every asset obtain by either party is subject to equitable distribution. Many people hold the mistaken belief that simply titling assets in that person’s sole name will protect the asset. This is simply not true. The statute requires the judge to begin with the presumption that all marital assets be divided equally. Although the judge is not required to do an equal division, that is the result in the overwhelming majority of divorce cases.

In addition to a likely equal division of all marital assets, alimony and/or spousal support may also be awarded depending on many factors. Disparity in the parties’ incomes and the length of the marriage are significant considerations. Depending on these factors, without a prenuptial agreement, alimony may be awarded for a number of years or on a permanent basis.


Premarital Assets Without a Prenuptial Agreement:

Even without a prenuptial agreement, there can be “pre-marital assets” as defined in the statute. Typically, these are assets owned prior to the marriage. However, the law significantly complicates this issue by creating a “marital claim” to pre-marital assets. Although many assets fall into this trap, real estate is the biggest issue. For example, if you own a house prior to the marriage and never put your spouse’s name on the title, your spouse may still have a significant claim to the house depending on: whether you paid the mortgage with your earnings; whether the house appreciated in value; whether you made any improvements to the house; and many other factors. Many people are shocked to learn that property that they thought was clearly separate, pre-marital property is suddenly subject to division by the court.

Unintended Dis-Inheritance Without a Prenuptial Agreement:

Of great concern is what is known as “unintended dis-inheritance”. If you have children from a previous relationship, they can be effectively cut off from receiving assets from your estate when you pass. It depends on many factors as to how the assets are held, but it can have devastating and unintended consequences. When you are married and pass away, all jointly titled assets such as the house, financial accounts, vehicles, etc. automatically go 100% to your spouse. When your spouse passes, all of those assets go to your spouse’s children or heirs – which do not include your children. Even if you maintain separately titled assets, without a prenuptial agreement, your spouse is entitled to an “elective share” of your assets. Again, when your spouse then passes, all of the assets go to your spouse’s heirs.

What Happens With a Prenup?

In simple terms, a prenuptial agreement allows married people to “opt-out” of the standard property distribution laws and instead set the terms under which property will be held and distributed in the event of divorce or death. The “Uniform Premarital Agreement Act” as set forth in Florida law allows prospective spouses to opt-out in this manner. Prenuptial Agreements can be drafted as creatively as needed to accomplish the parties’ goals. But, in general terms, the parties agree that how the asset is titled will govern the ownership and distribution of property. It is important to note however, that the laws and case law regarding interpretation and enforcement of prenuptial agreements is complicated. It is for this reason that you never want to use an on-line “fill in the blanks” prenuptial agreement.

Marital Assets With a Prenuptial Agreement:

With a prenuptial agreement, the definition of what is a marital asset subject to equitable distribution is changed. Generally, only assets that are purposefully titled in joint names become marital assets. The prenuptial agreement determines exactly what will happen to these assets upon divorce or death. When acquiring new assets during the marriage, the parties can discuss and decide at that time whether the asset will be jointly titled or only titled in one spouse’s name. Both parties know that they both will have a claim to any jointly titled assets, but that they will have no claim to assets titled only in the other spouse’s name.

Premarital Assets With a Prenuptial Agreement:

The additional benefit to having a prenuptial agreement is that you can ensure that there is no claim by the other spouse to any assets owned prior to the marriage. This is true regardless of whether you paid the mortgage with your earnings; whether the house appreciated in value; whether you made any improvements to the house; or any other factors.

No Unintended Dis-Inheritance With a Prenuptial Agreement:

With a prenuptial agreement, generally title alone determines ownership of the property. In addition, prenuptial agreements generally have a waiver of estate rights by both spouses which includes the “elective share”. Therefore, upon the death of either spouse, the assets titled in that spouse’s name are distributed to his/her heirs pursuant to the will, or Florida law if there is no will.

Is a Prenuptial Agreement Right for Me?

When considering a prenuptial agreement, having an experienced family law attorney on your side is important. Not only does Mr. Luther negotiate and draft Prenuptial Agreements, but he also assists his clients with the well proven methods for raising the issue with your prospective spouse in a non-adversarial and mutually beneficial way. The Premarital Agreements drafted by Mr. Luther are thorough and unambiguous agreements whose purpose is to protect your interests. They are a simple security measure that can save you from excessive court and attorney’s fees should a break-down of the marriage occur. If you are considering marriage, you should consider whether a prenuptial Agreement is right for you. If you need an experienced prenuptial lawyer to assist you, please contact Mr. Luther to set up an initial consultation.




P.O. Box 560039
Montverde, FL 34756

Wade P. Luther, PA is a law firm dedicated solely to the practice of family law. The results that you and your family achieve in a family law matter have a significant and long reaching impact on you and your children. As such it is important to have an experience and passionate attorney on your side. Mr. Luther will use his decades of family law experience to educate, inform and empower you to make the best decisions for your family and to obtain the best possible result.