Prenups and Inheritance Rights in Florida
Most people think of a prenup as a divorce document. In Florida it is just as much an estate-planning document — often the only way to guarantee that what you own passes to your children rather than by force of statute to a surviving spouse. Here is how the death side of a prenup works, and the formality that quietly breaks it.
The statute itself: for the exact text of Fla. Stat. § 732.702, its subsections and amendment history, see the statute page.
Quick Answer
A Florida prenuptial agreement can waive a surviving spouse’s death rights — the 30% elective share, intestate share, homestead devise protections, exempt property, and family allowance — under Fla. Stat. § 732.702. Signed before marriage, the waiver requires no financial disclosure. But it must be signed in the presence of two subscribing witnesses — a formality the divorce statute does not require, and the single most common defect in do-it-yourself prenups.
What Florida Gives a Surviving Spouse Automatically
Without a waiver, Florida law overrides a will in a surviving spouse’s favor. The spouse may claim an elective share of 30% of the elective estate under Fla. Stat. § 732.2065 no matter what the will says. If there is no will, the spouse takes half or all of the estate under § 732.102. The Florida Constitution restricts how homestead real estate can be devised when there is a surviving spouse, and statutes add exempt property and a family allowance on top. For a second marriage where each spouse wants their own children to inherit, these defaults are exactly the problem a prenup solves.
The Waiver: Fla. Stat. § 732.702
Section 732.702 permits each of these rights — elective share, intestate share, pretermitted share, homestead, exempt property, and family allowance — to be waived “wholly or partly, before or after marriage, by a written contract, agreement, or waiver.” A standard, well-drafted prenup does this in an express clause. Two timing rules matter:
- Before marriage: under § 732.702(2), no disclosure of assets is required for the death-rights waiver to be valid — a deliberate legislative choice that makes premarital waivers robust.
- After marriage: the same waiver in a postnuptial agreement requires fair disclosure of the other spouse’s estate. One more reason the prenup, signed before the wedding, is the stronger instrument.
Note the contrast with the divorce side: for dissolution purposes, Fla. Stat. § 61.079(7) makes disclosure central to enforceability. A careful agreement satisfies both statutes — full disclosure anyway, plus the death-rights formalities.
The Two-Witness Trap
Here is the defect we see most in agreements drafted from templates: § 732.702(1) requires the waiver to be “signed by the waiving party in the presence of two subscribing witnesses.” The divorce statute, § 61.079(3), requires no witnesses at all. So an unwitnessed prenup can be perfectly enforceable in a divorce — and worthless at death, leaving the surviving spouse free to claim the elective share against the estate plan both parties thought they had agreed to. Execution formalities are cheap; probate litigation is not.
Homestead, Wills, and Trusts
Florida’s homestead devise restrictions — constitutional protections limiting how a home can be left when there is a surviving spouse — can likewise be waived in a properly executed agreement. And Fla. Stat. § 61.079(4)(a) expressly permits a prenup to address the making of wills and trusts to carry out its terms, and rights to life insurance death benefits. The prenup states the deal; the estate plan — wills, trusts, beneficiary designations — executes it. They should be drafted to match, and reviewed together after the wedding.
Who Needs the Death-Rights Waiver Most
Second and later marriages where either spouse has children from a prior relationship; family businesses meant to stay in the bloodline; spouses with separate homes; and anyone whose estate plan leaves substantial assets to someone other than the new spouse. In these cases the inheritance clauses are not boilerplate — they are the point of the agreement. See how these provisions fit within a high-net-worth Florida prenuptial agreement involving trusts, family businesses, or substantial estates.
Frequently Asked Questions
Can a Florida prenup waive inheritance rights?
Yes — elective share, intestate share, homestead, exempt property, and family allowance can all be waived under Fla. Stat. § 732.702, and before marriage no disclosure is required for that waiver.
What is the elective share?
A surviving spouse’s statutory right to 30% of the elective estate under § 732.2065, payable regardless of the will — unless validly waived.
Does the waiver need witnesses?
Yes: two subscribing witnesses under § 732.702(1). An unwitnessed prenup can hold up in divorce and still fail at death.
Should the estate plan change after signing?
Usually yes — wills, trusts, and beneficiary designations should be updated to carry out what the prenup promises.
Related Reading
- Is a Prenuptial Agreement Enforceable in Florida?
- Prenups for Second Marriages in Florida
- How Much Does a Prenup Cost in Florida?
- Florida Prenuptial Agreement Attorney — Practice Area
- What a Florida Prenup Waives at Death: 30%, $20,000 and $18,000
- Prenup and Will Before the Wedding in Florida
- A Parent’s Guide to a Florida Prenup
Verifiable legal sources: Fla. Stat. § 61.079; Fla. Stat. § 732.702.
This article is general legal information about Florida law and is not legal advice. Whether and how spousal death rights should be waived depends on the specific facts and the estate plan as a whole. Reading this content does not create an attorney-client relationship with Pazos Law Group. Florida law changes over time; please consult a licensed Florida attorney about your situation.