Florida Prenups Need No Notary and No Witnesses — the Death-Rights Waiver Inside One Needs Two
Quick Answer
Does a Florida prenup have to be notarized or witnessed? No. Fla. Stat. § 61.079(3) requires only that a premarital agreement be “in writing and signed by both parties.” The words notary, witness and acknowledge do not appear anywhere in § 61.079 — not once in the entire section. But one clause commonly written inside a prenup is governed by a different statute with a stricter formality: a waiver of a surviving spouse’s rights at death must be signed in the presence of two subscribing witnesses under § 732.702(1). Two statutes, two different execution rules, one document.
What § 61.079(3) Actually Requires
The formality subsection is one sentence long. Section 61.079(3), headed FORMALITIES, provides that “[a] premarital agreement must be in writing and signed by both parties. It is enforceable without consideration other than the marriage itself.”
That is the whole requirement: a writing, and two signatures. There is no notarial acknowledgement, no attesting witness, no recording and no filing. We fetched the full text of § 61.079 from the Florida Legislature and from the Florida Senate’s statute server on September 8, 2026 and searched it: “notary” appears 0 times, “witness” appears 0 times, and “acknowledg” appears 0 times in the section. Anyone can repeat that count against the primary text linked below.
What § 732.702(1) Requires Instead
A prenup very often does more than divide property in a divorce. It also waives what the survivor would otherwise take if the other spouse dies. That waiver is not governed by § 61.079 at all. Section 732.702(1) provides that the rights of a surviving spouse — to an elective share, intestate share, pretermitted share, homestead, exempt property, family allowance, and the others the subsection lists — may be waived “by a written contract, agreement, or waiver, signed by the waiving party in the presence of two subscribing witnesses.”
The same subsection limits that formality: “[t]he requirement of witnesses shall be applicable only to contracts, agreements, or waivers signed by Florida residents after the effective date of this law,” and an instrument executed by a non-resident of Florida is valid here if it was valid where it was executed.
Why the Two Rules Sit in One Document
The divorce-facing terms of a premarital agreement and the death-facing terms answer to different chapters of Florida law. Chapter 61 governs dissolution of marriage. Chapter 732 is the probate code. A single signing ceremony has to satisfy whichever rule applies to each clause the document contains.
The practical consequence is one-directional. Signing before two subscribing witnesses satisfies both statutes at once, because § 61.079(3) demands nothing beyond the writing and the signatures. Signing without witnesses satisfies § 61.079(3) but leaves the death-rights waiver exposed to a § 732.702(1) attack. That is why the stricter of the two rules is the one worth observing at the table, even though the prenup statute never mentions it.
Where the Notary Idea Comes From
Neither statute requires a notary for either instrument. The expectation is imported from other kinds of documents — deeds and self-proving wills among them — and from the practice in a number of other states. Under Florida law a notarial acknowledgement on a premarital agreement adds no statutory requirement that was missing. What it can supply is evidentiary: a contemporaneous record of who signed, and when, which is useful if the agreement is later challenged on the voluntariness ground in § 61.079(7)(a)1.
The Requirement That Is Easy to Miss
Execution formality is not what most challenges turn on. Section 61.079(7)(a) puts the burden on the party resisting the agreement, who must prove that it was not executed voluntarily, or that it was the product of fraud, duress, coercion or overreaching, or that it was unconscionable when executed together with the failures of disclosure that subsection describes. A perfectly witnessed and notarised agreement can still fail on those grounds; an agreement with two plain signatures can hold.
Under § 61.079(9), any limitations period on a claim asserted under a premarital agreement is tolled during the marriage. The clock does not run while the couple is married.
Frequently Asked Questions
Does a prenup need to be notarized in Florida?
No. § 61.079(3) requires only that the agreement be in writing and signed by both parties, and adds that it is enforceable without consideration. The word “notary” does not appear anywhere in § 61.079 — nor do “witness” or “acknowledge”. Notarising anyway costs nothing and creates better evidence that each person actually signed, but it is proof, not a condition of validity.
Does a Florida prenup need witnesses?
Not under § 61.079, which asks only for a writing signed by both parties. But if the agreement waives the surviving spouse’s rights at death — the elective share, homestead, intestate share, exempt property or family allowance — then § 732.702(1) requires that the waiving party sign in the presence of two subscribing witnesses. Miss that and the prenup can be valid while waiving no inheritance right at all.
How many witnesses does a waiver of spousal rights need?
Two subscribing witnesses, under § 732.702(1). The statute applies that requirement to contracts, agreements and waivers signed by Florida residents after the effective date of the law, and an instrument executed by a non-resident is valid in Florida if it was valid where executed. This is the requirement that catches people out: the prenuptial agreement itself needs no witnesses at all under § 61.079(3).
Does a prenup signed in another state need Florida witnesses?
No. § 732.702(1) provides that a contract, agreement or waiver executed by a non-resident of Florida is valid in this state if it was valid when executed under the law of the state or country where it was executed. The two-subscribing-witness rule is directed at instruments signed by Florida residents after that law’s effective date, so an out-of-state agreement is judged by the formalities of the place it was signed.
Is a Florida prenup filed with a court?
No. It is a private contract between the parties and carries no filing fee of any kind; nothing in § 61.079 requires filing, recording or clerk involvement. The comparison worth making is with the other document: filing a petition for dissolution of marriage costs $409.00, verified at the Miami-Dade, Broward and Palm Beach clerks. See Florida court fees — $0 to sign a prenup, $409 to file for divorce.
Primary Sources
- Fla. Stat. § 61.079 — premarital agreements, including the FORMALITIES subsection.
- Fla. Stat. § 732.702 — waiver of spousal rights, including the two-subscribing-witness requirement.