Can a postnup keep my inheritance separate in Florida?
An inheritance can raise questions long after the wedding: where to keep it, what happens to its income, and how to document property bought with it. A postnup can address those questions through specific written terms.
Quick Answer
Can a postnup keep my inheritance separate in Florida?
Yes, a valid written postnuptial agreement can address keeping inherited assets separate. Florida Statutes § 61.075(6)(b)2. already classifies separately acquired inheritances as nonmarital, and subsection (6)(b)4. recognizes exclusions by valid written agreement. Review the asset history, income and any mixing of funds, as well as Casto fairness and disclosure. Death-rights waivers require a separate § 732.702 analysis.
Pazos Law Group, a family law firm in Coral Gables serving Miami-Dade, Broward and Palm Beach counties, drafts and reviews postnups addressing inheritances, in English or Spanish: (305) 482-1262.
The Starting Rule for an Inheritance
Florida Statutes § 61.075(6)(b) lists categories of nonmarital assets and liabilities. Subparagraph 2. states:
Assets acquired separately by either party by noninterspousal gift, bequest, devise, or descent, and assets acquired in exchange for such assets.
The words describe separately acquired property and property acquired in exchange for it. An inheritance should therefore be identified by its source and history, not only by its current account balance. A review may start with estate distribution records, statements showing receipt and records of later purchases or transfers.
Receiving an inheritance during marriage does not, by itself, place it outside this statutory category. But the history matters when identifying what remains of the inherited property. If the original asset has been sold or exchanged, ask how the records connect the replacement asset to what was received.
What a Valid Written Agreement Can Address
Section 61.075(6)(b)4. states:
Assets and liabilities excluded from marital assets and liabilities by valid written agreement of the parties, and assets acquired and liabilities incurred in exchange for such assets and liabilities.
This provides a basis for spouses to exclude identified assets and liabilities through a valid written agreement. The word valid matters: an agreement’s description of property does not eliminate questions about disclosure, fairness or the circumstances of signing.
A proposed inheritance provision can identify the original asset, the account or property that now holds it, and what the spouses intend for later exchanges. Ask whether the wording addresses only the inherited principal or also income and replacement assets. A general reference to family money may leave those practical questions unanswered.
Commingling: Follow the Money Before Drafting
Commingling means mixing funds. If inherited funds move into an account also used for household money, it can become harder to show which later withdrawals or purchases came from the inheritance. That tracing problem is a reason to gather records before agreeing to a description of separate property.
For example, suppose an inherited account funded part of an investment purchase while other funds covered the balance. Give the reviewing lawyer the transfer and purchase records, not just the latest statement. Ask how the draft should identify the contribution and how it would treat a later sale. This example illustrates a review question; it does not determine how a court would classify a particular asset.
A postnup should not treat missing records as if they exist. If the spouses disagree about the source of an asset or the amount contributed, identify that disagreement and discuss what information or wording is needed. Avoid assuming that a new label automatically resolves the history.
Income Has Its Own Statutory Qualification
Section 61.075(6)(b)3. includes:
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 inherited asset and its income deserve separate attention. Review whether interest, distributions or rent stayed separate or were used for household needs. The statute expressly addresses income treated, used or relied upon as a marital asset; it is not enough to say that everything associated with an inheritance always remains separate.
Ask the drafting lawyer to explain how the proposed terms handle the income going forward and how they address the existing financial history. Keep the distinction visible in the disclosure schedules. A plan for future handling and an account of past transactions serve different purposes.
An Inheritance Clause Still Needs Fairness and Disclosure
A new Florida postnup is reviewed under case law, principally Casto v. Casto, 508 So. 2d 330 (Fla. 1987). It can be set aside for fraud, deceit, duress, coercion, misrepresentation or overreaching. Unfair or unreasonable terms combined with a lack of full asset disclosure can also support a challenge.
That review concerns the agreement as a financial arrangement, not just the inherited asset’s name. Disclose the inheritance clearly and consider how the proposed exclusion fits with the rest of the couple’s finances. Each spouse should have an opportunity to seek separate advice and ask questions before signing.
Our Florida postnuptial agreement overview explains the broader framework. For planning before marriage, see protecting an inheritance with a Florida prenup; the timing and governing agreement framework differ.
Keeping Property Separate Is Distinct From Waiving Death Rights
Ask separately what the agreement does if either spouse dies. Florida Statutes § 732.702 addresses waivers of surviving-spouse rights, including elective-share, intestate-share and homestead rights. A broad waiver can reach more than the single inheritance being discussed.
Section 732.702(2) states:
Each spouse shall make a fair disclosure to the other of that spouse’s estate if the agreement, contract, or waiver is executed after marriage.
For covered waivers signed by Florida residents, subsection (1) calls for signing in the presence of two subscribing witnesses. It separately recognizes a nonresident’s waiver valid under the law where executed. Have the reviewing lawyer address the relevant residence and signing facts, along with the waiver’s scope.
Preparing for Review in South Florida
Pazos Law Group works with clients in Miami-Dade, Broward and Palm Beach counties, in English or Spanish. Its one office is at 7225 Vistalmar Street, Coral Gables, Florida 33143; meetings are also available by video. Our Miami postnuptial agreement page describes local services.
Prepare a timeline of receipt, transfers and purchases; identify the documents supporting it; and list what you want the agreement to address. Include any existing marital agreement and any draft your spouse has provided. The conversation can then focus on the actual inheritance and proposed terms.
Frequently Asked Questions
Does every inheritance need a postnup?
The statute already identifies separately acquired inheritances as nonmarital. Whether additional written terms are useful depends on the asset history, your concerns and the proposed agreement.
Can I ignore income if the original inheritance is separate?
No. Review income separately because § 61.075(6)(b)3. expressly qualifies its treatment based on how the spouses treated, used or relied upon it.
Official Sources & Related Reading
- Florida Statutes § 61.075(6)(b): nonmarital assets and liabilities
- Florida Statutes § 732.702: waiver of spousal rights
- Casto v. Casto, 508 So. 2d 330 (Fla. 1987): Florida postnuptial agreement review.
The information on this page is for general informational purposes only and does not constitute legal advice. Reading or sharing this content does not create an attorney-client relationship with Pazos Law Group. Florida law and the application of statutes change over time; please consult a licensed Florida attorney about your specific situation.