What Should Be Included in a Florida Prenup?

Pazos Law Group • Coral Gables, Florida • Family Law

A prenuptial agreement is one of the most practical steps you can take before marriage. It is not a sign of distrust. It is a legal framework that protects both spouses by defining financial expectations in advance. In Florida, prenuptial agreements are governed by the Uniform Premarital Agreement Act, codified at Florida Statutes § 61.079. Understanding what this statute allows—and what it prohibits—is essential to drafting an agreement that will hold up in court.

What Florida Law Allows in a Prenuptial Agreement

Section 61.079(4)(a) of the Florida Statutes provides a broad list of matters that parties may address in a prenuptial agreement. The statute gives couples significant freedom to arrange their financial affairs, as long as the agreement does not violate public policy or criminal law.

The following is a comprehensive breakdown of what you can include.

1. Property Rights and Division

The most common reason couples sign a prenup is to define how property will be treated during the marriage and in the event of divorce. Under § 61.079(4)(a)1., the agreement may address the rights and obligations of each party in any property, whenever and wherever acquired or located. This means you can designate certain assets as separate property, even if they would otherwise become marital property under Florida’s equitable distribution laws.

For example, if one spouse owns a home before the marriage, a prenup can state that the home remains that spouse’s separate property regardless of any contributions the other spouse makes during the marriage.

2. Buying, Selling, and Managing Property

Section 61.079(4)(a)2. allows the agreement to cover the right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property. This provision is particularly useful for couples with real estate portfolios or significant investment holdings.

3. Disposition of Property at Death or Divorce

A prenup can specify what happens to property upon separation, marital dissolution, death, or the occurrence of any other event. Under § 61.079(4)(a)3., couples can plan for the distribution of assets in multiple scenarios, providing clarity that goes beyond what a will or trust alone can accomplish.

4. Alimony Provisions

Florida law explicitly permits prenuptial agreements to modify or eliminate spousal support. Section 61.079(4)(a)4. states that the agreement may address the modification or elimination of spousal support. This is one of the most powerful and frequently used provisions, though it comes with important caveats regarding unconscionability that are discussed in detail elsewhere.

5. Life Insurance Obligations

Under § 61.079(4)(a)5., a prenup can require one or both spouses to maintain life insurance policies, name specific beneficiaries, or establish terms for how life insurance proceeds are handled. This provision is especially relevant for blended families where a spouse wants to ensure children from a prior relationship receive specific benefits.

6. Choice of Law

Section 61.079(4)(a)6. allows the parties to choose which state’s law governs the construction and interpretation of the agreement. If you are married in Florida but plan to relocate, this provision lets you ensure that Florida law continues to apply to your prenup.

7. Business Interests

While not listed as a separate category, business interests fall squarely within the property provisions of § 61.079(4)(a). A well-drafted prenup can protect a business from equitable distribution by classifying it as separate property and addressing how any appreciation in value during the marriage will be treated. This is critical for entrepreneurs and business owners.

8. Debt Allocation

A prenup can address how debts incurred before and during the marriage will be allocated between the spouses. Under Florida’s equitable distribution framework at § 61.075, marital liabilities are divided alongside marital assets. A prenuptial agreement allows you to control this process rather than leaving it to a court’s discretion.

9. Any Other Matter Not in Violation of Law

Section 61.079(4)(a)8. contains a catch-all provision permitting the agreement to address any other matter, including personal rights and obligations, not in violation of either the public policy of this state or a law imposing a criminal penalty. This gives couples broad latitude, though the agreement cannot include provisions that are unconscionable or contrary to Florida public policy.

What Cannot Be Included in a Florida Prenup

Florida law draws a clear line when it comes to children. A prenuptial agreement cannot adversely affect the right of a child to support. This limitation is codified at § 61.079(4)(b). Courts retain exclusive jurisdiction over child custody, visitation, and child support, and no private agreement between parents can override that authority.

Any provision in a prenup that attempts to predetermine child custody arrangements or limit child support obligations will be deemed unenforceable. The court will always evaluate the best interests of the child at the time of divorce, regardless of what the parents agreed to before the marriage.

Requirements for Enforceability

Including the right provisions is only part of the equation. For a Florida prenup to be enforceable, it must also satisfy the requirements of § 61.079(7). The agreement must be in writing and signed by both parties. It must be executed voluntarily—meaning without fraud, duress, coercion, or overreaching. Both parties must receive fair and reasonable disclosure of the other’s assets and financial obligations, unless that disclosure is waived in writing.

An agreement that is procedurally sound but substantively unconscionable may still be set aside by a Florida court. This is why working with an experienced family law attorney who understands how Florida courts evaluate these agreements is so important.

Why a Comprehensive Prenup Matters

A prenuptial agreement that only addresses one or two issues leaves gaps that a court will fill using Florida’s default rules. Those default rules may not align with your expectations. The more comprehensive your prenup, the more control you retain over your financial future. Each provision should be tailored to your specific circumstances, which is why a one-size-fits-all template downloaded from the internet is rarely sufficient.