What Happens to Your Assets Without a Prenup in Florida? A § 61.075 Classification Tool (2026)

By Nadia Pazos, Family Law Attorney, Pazos Law Group · Updated August 8, 2026

If you marry in Florida without a premarital agreement, Fla. Stat. § 61.075 — titled “Equitable distribution of marital assets and liabilities” — decides which of your things are yours alone and which become divisible. This tool classifies your assets under that statute. It does not predict an outcome, and it never produces a dollar figure.

Florida is not a community property state — § 61.075(8) says expressly that the section does not “establish community property in this state.” What it does instead is sort every asset into two boxes. Nonmarital property is set apart to the spouse who owns it. Marital property is divided. Without an agreement under § 61.079, the statute does the sorting for you, and it does not care what you intended.

What Does Florida Consider Nonmarital Property? (§ 61.075(6)(b))

Section 61.075(6)(b) defines nonmarital assets and liabilities. Four of its six subparagraphs matter to almost every person marrying with property already in hand:

• § 61.075(6)(b)1. — “Assets acquired and liabilities incurred by either party prior to the marriage, and assets acquired and liabilities incurred in exchange for such assets and liabilities.” The “in exchange for” clause is why tracing matters: sell the pre-marital stock, buy something else with the proceeds, and the replacement can stay nonmarital — if you can prove the chain.
• § 61.075(6)(b)2. — “Assets acquired separately by either party by noninterspousal gift, bequest, devise, or descent, and assets acquired in exchange for such assets.” That is the inheritance rule. Note the word noninterspousal: gifts between spouses go the other way, under § 61.075(6)(a)1.d.
• § 61.075(6)(b)3. — “All income derived from nonmarital assets during the marriage unless the income was treated, used, or relied upon by the parties as a marital asset.” The exception swallows a lot of rules in practice.
• § 61.075(6)(b)4. — “Assets and liabilities excluded from marital assets and liabilities by valid written agreement of the parties.” This is the hook a premarital agreement under § 61.079 hangs on.

Everything else acquired after the wedding starts on the other side of the ledger. Section 61.075(8) provides that all assets acquired and liabilities incurred by either spouse after the date of the marriage “and not specifically established as nonmarital assets or liabilities are presumed to be marital assets and liabilities.” The burden of rebutting that presumption sits on the spouse claiming the asset is separate.

Why Does a Founder Lose Part of a Pre-Marital Business? (§ 61.075(6)(a)1.b.)

This is the provision that surprises people, and it is the reason this tool exists. Section 61.075(6)(a)1.b. includes among marital assets:

“The enhancement in value and appreciation of nonmarital assets resulting from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both.”

Read that against § 61.075(6)(b)1. The company you owned on the wedding day is nonmarital. The growth you created by running it for the next twelve years is not. Florida draws the line between passive appreciation, which follows the nonmarital asset, and active appreciation produced by marital labor or marital money, which becomes divisible.

Your salary during the marriage is a marital asset under § 61.075(6)(a)1.a. So is a bonus, and so is anything bought with either. Spend that money on the pre-marital company — a capital contribution, a build-out, a hire — and the second half of § 61.075(6)(a)1.b. is triggered independently of your labor. Two separate routes lead to the same place.

Section 61.075(11) is the historical footnote worth knowing: “Special equity is abolished,” and all former special-equity claims must now be asserted “as a claim of enhancement in value or appreciation of nonmarital property.” The doctrine did not disappear; it was folded into § 61.075(6)(a)1.b. For a longer treatment, see our guide on dividing a business in a Florida divorce.

How Is a Closely Held Business Valued After Chapter 2024-237?

Chapter 2024-237, Laws of Florida, effective July 1, 2024, added § 61.075(6)(a)1.f. to the statute. It tells a court exactly how to value the marital interests in a closely held business:

1. § 61.075(6)(a)1.f.(I) — “The standard of value of a closely held business is fair market value,” defined as “the price at which property would change hands between a willing and able buyer and a willing and able seller, with neither party under compulsion to buy or sell, and when both parties have reasonable knowledge of the relevant facts.”
2. § 61.075(6)(a)1.f.(II) — “If there is goodwill separate and distinct from the continued presence and reputation of the owner spouse, it is considered enterprise goodwill, which is a marital asset that must be valued by the court.”
3. § 61.075(6)(a)1.f.(III) — the court must consider evidence that a covenant not to compete may be required on sale, “but such evidence alone does not preclude the court from finding enterprise goodwill.”

A drafting point worth being precise about: the statute uses the term enterprise goodwill. The phrase personal goodwill appears nowhere in § 61.075. The statutory test is stated affirmatively — goodwill “separate and distinct from the continued presence and reputation of the owner spouse” is enterprise goodwill and is marital. Value tied to the owner personally is not captured by that definition.

How Does Florida Split a Home You Owned Before the Marriage? Kaaa v. Kaaa (2010)

If the house is mortgaged and marital income pays the mortgage, part of its appreciation becomes marital even if neither spouse lifts a hammer. Section 61.075(6)(a)1.c. makes marital:

“The paydown of principal of a note and mortgage secured by nonmarital real property and a portion of any passive appreciation in the property, if the note and mortgage secured by the property are paid down from marital funds during the marriage.”

The statute then supplies the arithmetic in sub-sub-subparagraphs (I) through (V): passive appreciation is measured from the date of marriage or acquisition, whichever is later; the coverture fraction has as its numerator “the total payment of principal from marital funds of all notes and mortgages secured by the property during the marriage” and as its denominator the property’s value at the later of marriage, acquisition, or first encumbrance; and the marital portion may not exceed total net equity at valuation. Under (V), a court “shall apply the formula” unless a party shows that doing so would be inequitable.

That codified formula comes from Kaaa v. Kaaa, 58 So. 3d 867 (Fla. 2010), in which the Florida Supreme Court held that passive appreciation of a nonmarital home is subject to equitable distribution where marital funds paid down the mortgage. The Legislature later wrote the Kaaa methodology into § 61.075(6)(a)1.c.

Separately, watch the deed. Section 61.075(6)(a)2. provides that all real property held as tenants by the entireties, “whether acquired before or during the marriage, is presumed to be a marital asset,” and § 61.075(6)(a)4. sets the burden to overcome the gift presumption at clear and convincing evidence. Adding a new spouse to the title of a pre-marital house is one of the fastest ways to convert it.

Are Retirement Accounts Marital Under § 61.075(6)(a)1.e.?

The accrual during the marriage is. Section 61.075(6)(a)1.e. includes among marital assets “all vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs.”

Two words carry weight. Nonvested means an unvested pension or an unvested employer contribution is still on the table. Accrued during the marriage means the balance you brought to the wedding is not — that portion remains nonmarital under § 61.075(6)(b)1., provided it can be traced. Deferred compensation is named expressly, which is why equity compensation and deferred plans deserve their own analysis. See dividing retirement accounts in a Florida divorce.

Does an Inheritance Stay Yours in a Florida Divorce?

Generally yes, if it stays separate. Section 61.075(6)(b)2. classifies as nonmarital assets acquired “by noninterspousal gift, bequest, devise, or descent,” and § 61.075(6)(b)6. covers inherited real property “for which legal title has not been transferred to the parties as tenants by the entireties.”

Three things break it. Depositing the inheritance into a joint account implicates § 61.075(6)(a)3., under which jointly titled personal property is presumed marital. Retitling inherited real estate jointly implicates § 61.075(6)(a)2. And spending marital income on the inherited asset, or working on it, brings back § 61.075(6)(a)1.b. The income question is governed by § 61.075(6)(b)3. — separate unless “treated, used, or relied upon by the parties as a marital asset.”

Does a Florida Court Start at 50/50? What § 61.075(1) Actually Says

It starts there as a premise, not a rule. Under § 61.075(1), the court “shall set apart to each spouse that spouse’s nonmarital assets and liabilities, and in distributing the marital assets and liabilities between the parties, the court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors.”

The statute then lists ten factors, (a) through (j). Several bear directly on a founder’s exposure: § 61.075(1)(f), “the desirability of retaining any asset, including an interest in a business, corporation, or professional practice, intact and free from any claim or interference by the other party”; § 61.075(1)(g), each spouse’s contribution to “the acquisition, enhancement, and production of income”; and § 61.075(1)(c), the duration of the marriage.

Two procedural provisions matter too. Section 61.075(3) requires specific written findings identifying nonmarital assets and ownership interests and valuing significant marital assets. Section 61.075(7) fixes the cut-off date for classification as the earliest of a valid separation agreement, a date set in that agreement, or “the date of the filing of a petition for dissolution of marriage.” Our Florida marital asset division calculator works through the distribution side; this page is about classification.

What About Alimony Exposure Under § 61.08?

Equitable distribution and alimony are decided separately. Section 61.075(9) says a court may distribute assets “without regard to alimony,” and only after that determination “shall consider whether a judgment for alimony shall be made.”

Fla. Stat. § 61.08, titled “Alimony,” requires the court under § 61.08(2)(a) to make “a specific, factual determination as to whether the party seeking support, maintenance, or alimony has an actual need for it and whether the other party has the ability to pay.” Section 61.08(5) creates rebuttable presumptions on duration: a short-term marriage is one lasting less than 10 years, a moderate-term marriage one “having a duration between 10 and 20 years,” and a long-term marriage one of 20 years or longer. Section 61.08(3)(d) directs the court to consider “the resources and income of each party, including the income generated from both nonmarital and marital assets” — so nonmarital property is not invisible to the alimony analysis even though it is not distributed.

A premarital agreement can address this directly. Section 61.079(4)(a)4. permits parties to contract about “the establishment, modification, waiver, or elimination of spousal support.” Our Florida alimony calculator applies the § 61.08 framework separately.

Can a Prenup Change Any of This? § 61.079(4)(a)

Yes — that is precisely what § 61.079, the Florida “Uniform Premarital Agreement Act,” is for. Under § 61.079(2)(a) a premarital agreement is “an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage,” and § 61.079(2)(b) defines “property” broadly to include “income and earnings, both active and passive” — the exact category § 61.075(6)(a)1.b. would otherwise convert.

Section 61.079(4)(a) lets parties contract with respect to, among other things:

• (4)(a)1. — “The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located”;
• (4)(a)2. — the right to manage, encumber, transfer or dispose of property;
• (4)(a)3. — “The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event”;
• (4)(a)4. — spousal support;
• (4)(a)5. — wills, trusts and related arrangements;
• (4)(a)6. — life insurance death benefits;
• (4)(a)7. — choice of law; and
• (4)(a)8. — “Any other matter… not in violation of either the public policy of this state or a law imposing a criminal penalty.”

Formalities are minimal but strict: § 61.079(3) requires the agreement to be “in writing and signed by both parties,” enforceable “without consideration other than the marriage itself.” Section 61.079(5) provides that it “becomes effective upon marriage of the parties.” Enforcement is governed by § 61.079(7)(a), which lists the three defenses — involuntary execution; “fraud, duress, coercion, or overreaching”; and unconscionability at execution coupled with the three disclosure failures in (7)(a)3.a.–c. Section 61.079(7)(c) makes unconscionability “a matter of law” for the court. See our Florida prenuptial agreement page and the Florida prenup FAQ.

What Can a Premarital Agreement Never Do? § 61.079(4)(b)

One sentence sets the outer limit. Section 61.079(4)(b): “The right of a child to support may not be adversely affected by a premarital agreement.”

Child support is set by the guidelines in § 61.30, and time-sharing is decided under § 61.13 — § 61.13(2)(c)1. requires a parenting plan approved by the court in every case involving time-sharing, with the best interest of the child as the primary consideration. Neither is contractible away in advance. There is also a public-assistance backstop in § 61.079(7)(b) for support waivers.

Note also what § 61.079 does not govern. It applies to agreements “made in contemplation of marriage.” Agreements signed after the wedding are postnuptial or marital settlement agreements analyzed under case law including Casto v. Casto, 508 So. 2d 330 (Fla. 1987), not under § 61.079. Financial disclosure standards for those agreements trace to Casto and to Thompson v. Thompson, 576 So. 2d 267 (Fla. 1991). Grounds for dissolution itself are in § 61.052, and the residency requirement in § 61.021.

Where Can You Read the Statutes Yourself?

The primary sources for everything on this page are free and public:

• Fla. Stat. § 61.075, “Equitable distribution of marital assets and liabilities” (Online Sunshine, Florida Legislature)
• Fla. Stat. § 61.079, “Premarital agreements” (Online Sunshine, Florida Legislature)
• Fla. Stat. § 61.08, “Alimony” (The Florida Senate)

Our own plain-English summaries: § 61.075 equitable distribution, § 61.079 premarital agreements, and the full Florida family law statute index. Attorney’s fees in any resulting litigation are governed by § 61.16.

Frequently Asked Questions

What Should You Read Next?

• Do You Need a Prenup? Quiz — a shorter self-assessment if you are still deciding.
• Florida prenup checklist and cost — what drafting actually involves.
• High-net-worth divorce in Florida — where classification fights usually end up.
• Prenuptial and postnuptial agreements — including agreements signed after the wedding.
• All Pazos Law Group tools and calculators.

This page and the interactive tool on it are educational only. They explain how Florida law classifies assets under Fla. Stat. § 61.075 and what Fla. Stat. § 61.079 permits a premarital agreement to change. They do not constitute legal advice, do not predict how any court would rule, and produce no dollar amounts or percentage splits. No attorney-client relationship is created by using this tool or by contacting Pazos Law Group through this page. Florida statutes and the decisions interpreting them change; consult a licensed Florida attorney about your specific situation.

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