Protecting an Inheritance With a Florida Prenup: Wills, the Elective Share, and the Commingling Trap (2026)

By Nadia Pazos, Family Law Attorney, Pazos Law Group · Updated September 7, 2026

Families that have something to pass down — a business, real estate, brokerage accounts, a future estate — usually have a will and often a trust. Almost none of that planning survives contact with Florida marital law unless the marrying generation signs the right agreement. The will can be overridden by the elective share, the “separate” inheritance can transmute through commingling, and its growth can become marital through effort or marital funds. This page is the map of those three failure modes and how a prenuptial agreement closes each one.

What Florida Already Protects — and Where It Stops (§ 61.075(6)(b))

Start with the statute. § 61.075(6)(b) defines nonmarital assets to include assets acquired before the marriage, assets acquired by “noninterspousal gift, bequest, devise, or descent,” assets excluded by valid written agreement, and income from nonmarital assets unless treated as marital. An inheritance from your parents — received before or during the marriage — starts life as yours alone. A divorce court distributes marital assets; on day one, your inheritance is not one.

The protection is real but fragile, because three ordinary behaviors of married life erode it: mixing money, improving assets, and dying. Each has its own law.

Failure Mode #1: Commingling and the Interspousal Gift (Hooker)

Deposit inherited money into the joint account that pays the household bills, and tracing gets hard fast; retitle the inherited condo into both names, and you may have made a gift. In Hooker v. Hooker, 220 So. 3d 397 (Fla. 2017), the Florida Supreme Court upheld findings that properties bought with the husband’s nonmarital money had become marital through interspousal gift — donative intent, delivery, surrender of control — notwithstanding a valid premarital agreement. Gifts between spouses are marital under § 61.075(6)(a)1.d., and conduct can be relevant to whether a gift occurred.

A tailored prenup can define what the parties intend to treat as an interspousal gift and set practical rules for separate accounts, titling, and recordkeeping. Following those rules can reduce later disputes, but the result still depends on the agreement, the parties’ conduct, and applicable law.

Failure Mode #2: Appreciation From Effort or Marital Funds (§ 61.075(6)(a)1.b.; Kaaa)

The inheritance you keep separate can still grow marital. § 61.075(6)(a)1.b. makes marital the “enhancement in value and appreciation of nonmarital assets resulting either from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds.” Operating an inherited family business or using marital funds on inherited property can create a claim that resulting enhancement or appreciation is marital. Kaaa v. Kaaa, 58 So. 3d 867 (Fla. 2010), extends this even to passive appreciation where marital funds paid down the mortgage.

Under § 61.079(4)(a)1.–3., a prenup can allocate property “whenever and wherever acquired” — including future inheritances — and can assign income and appreciation of nonmarital assets to the owning spouse, closing the Kaaa gap by contract.

Failure Mode #3: Your Will Does Not Control — the Elective Share (§ 732.2035)

This is the piece most families with wills have never heard. A Florida surviving spouse may elect against the estate and take 30% of the elective estate — and the elective estate is far bigger than the probate estate: § 732.2035 sweeps in the decedent’s revocable trust, certain jointly held property, and other nonprobate assets. Add the spouse’s homestead rights, intestate share if there is no will, exempt property and family allowance. A will that “leaves everything to my children from my first marriage” simply does not do that against a non-waiving spouse.

A written waiver can coordinate the prenup with the estate plan. Section 61.079(10) preserves the formalities of § 732.702, including the requirement that the waiving party sign “in the presence of two subscribing witnesses” when that provision applies. An execution defect may affect death-time waivers even if other provisions are analyzed separately. (One more coordination point: after a divorce, § 736.1105 voids revocable-trust provisions in favor of the former spouse unless the trust or judgment says otherwise — your estate planner and family lawyer should be reading the same file.)

Protecting an Inheritance You Have Not Received Yet

Most engaged couples with family wealth are protecting an expectancy — the estate their parents intend to leave. A prenup handles this cleanly: § 61.079(4)(a)1. reaches property whenever acquired, so the agreement can provide today that any inheritance either spouse receives, plus its income and appreciation, remains that spouse’s nonmarital property. Disclosure can describe the expectancy honestly (“anticipated inheritance from parents, amount uncertain”) without guaranteeing anything to anyone. For inheritances that arrive through trusts — increasingly the norm — see our companion page on prenups for trust beneficiaries, where a different set of rules (trust income, spendthrift limits, Nelson v. Nelson) takes over.

The Disclosure Rule Reverses Depending on Whether You Divorce or Die

One prenup, signed once, is measured against two different disclosure standards in Florida — and they point in opposite directions.

On the divorce side, disclosure is central. § 61.079(7)(a)3. lets a court refuse enforcement where the agreement was unconscionable when executed and the challenging party was not provided a fair and reasonable disclosure, and did not waive further disclosure in writing, and did not have or reasonably could not have had adequate knowledge of the other’s finances. Those clauses are joined by “and”: all three must be proved.

On the death side, disclosure is not required at all — provided the document was signed before the wedding. § 732.702(2) states it plainly: “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. No disclosure shall be required for an agreement, contract, or waiver executed before marriage.”

So a premarital waiver of the elective share, homestead, intestate share, exempt property and family allowance can be valid under § 732.702 even though the schedules were thin — while the very same thin schedules are one of the three elements a spouse would need on the divorce side. Sign the identical document one day after the ceremony and the exemption disappears: fair disclosure becomes mandatory for the death-rights waiver.

The formalities invert as well. § 61.079(3) requires only a writing signed by both parties — no notary, no witnesses. § 732.702(1) requires the waiving party’s signature in the presence of two subscribing witnesses. An agreement can therefore be perfectly valid as a prenup and still fail to waive a single inheritance right, because the witnesses were never in the room.

The practical consequence for anyone protecting an inheritance: the death-rights waiver has looser disclosure and stricter execution than the divorce provisions sitting in the same document. Getting one right does not get the other right.

Second Marriages and Blended Families

The elective-share problem is sharpest in remarriage: children from a first marriage, a new spouse, and an estate plan the two sides read differently. This is the fact pattern Florida’s courts have blessed marital agreements for since Del Vecchio v. Del Vecchio, 143 So. 2d 17 (Fla. 1962) — a fairly made agreement lets both spouses protect their own children’s inheritances while providing for each other by design rather than by statute. The same § 732.702 formalities and § 61.079(7)(a)/Casto fairness requirements apply; so does the advice to start months before the wedding, with independent counsel on each side.

Inheritance-Protection Checklist

1. Prenup clause keeping all inheritances — received or future — plus their income and appreciation, nonmarital (§ 61.079(4)(a)1.–3.).
2. Interspousal-gift definition requiring a signed writing (the Hooker clause).
3. Account-hygiene provisions: separate accounts, no joint titling, tracing records.
4. Death-time waivers (elective share, homestead, intestate share, exempt property, family allowance) executed with two subscribing witnesses when required by § 732.702; notarization may also be used as an authentication practice.
5. Honest disclosure schedules, including expected inheritances (§ 61.079(7)(a)3.).
6. Estate-plan coordination: will, trust, beneficiary designations and the prenup telling one story.
7. Meaningful review time and independent counsel for each party to support informed decisions before signing.

Frequently Asked Questions

Official Sources & Related Reading

• Fla. Stat. § 61.079, Premarital agreements — official text (Online Sunshine)
• Fla. Stat. § 61.075, Equitable distribution — official text
• Fla. Stat. § 732.2035, Property entering into elective estate — official text
• Fla. Stat. § 732.702, Waiver of spousal rights — official text
• Hooker v. Hooker, 220 So. 3d 397 (Fla. 2017)
• Kaaa v. Kaaa, 58 So. 3d 867 (Fla. 2010)
• Del Vecchio v. Del Vecchio, 143 So. 2d 17 (Fla. 1962)
• Casto v. Casto, 508 So. 2d 330 (Fla. 1987)
• Prenups for Trust Beneficiaries & Family Trusts
• High-Net-Worth Prenuptial Agreements in Florida
• Prenup Review Service — Independent Review
• Florida Prenuptial Agreement Attorney
• Esta página en español
• Prenup and Will Before the Wedding in Florida
• Prenup With a 401(k), IRA or Pension in Florida

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