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Pazos Law Group Prenups · Divorce · Family Law

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

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.

Quick Answer

I have (or expect) an inheritance. What does a prenup actually add?

Three protections nothing else provides. (1) Divorce: an inheritance is nonmarital under § 61.075(6)(b), but commingling and interspousal-gift conduct can make it marital — in Hooker v. Hooker, 220 So. 3d 397 (Fla. 2017), that happened despite a valid prenup — and marital-effort appreciation is marital under § 61.075(6)(a)1.b. (Kaaa v. Kaaa). A prenup defines and documents what stays separate. (2) Death: Florida’s elective share hands a surviving spouse 30% of the elective estate — including your revocable trust, § 732.2035 — no matter what your will says; only a § 732.702-compliant waiver (two subscribing witnesses) restores your estate plan. (3) The next generation: the same agreement protects what your parents intend to leave you.

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.c., and conduct can prove the gift.

A well-drafted prenup fights back twice: it can define what does and does not constitute an interspousal gift (for example, requiring a signed writing), and it can prescribe the account hygiene — separate accounts, no joint titling of inherited assets, documented tracing — that keeps the question from ever getting to a judge.

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.” Run the inherited family business, renovate the inherited rental with your paycheck, or pay its mortgage from the joint account — and the growth belongs partly to the marriage. 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.

The fix is a waiver that satisfies § 732.702 — which § 61.079(10) expressly preserves for prenups: the waiving party must sign “in the presence of two subscribing witnesses.” Signed correctly, the prenup restores the will and trust to full effect; signed without witnesses, the death-time waivers can fail even while the rest of the agreement stands. (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.

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 witnesses + notary (§ 732.702).
  5. Honest disclosure schedules, including expected inheritances (§ 61.079(7)(a)2.).
  6. Estate-plan coordination: will, trust, beneficiary designations and the prenup telling one story.
  7. Time and independent counsel — the Casto/§ 61.079(7)(a) record that keeps the agreement enforceable.

Frequently Asked Questions

Isn't my inheritance automatically protected in a Florida divorce?

The inheritance itself usually is: Fla. Stat. § 61.075(6)(b) makes assets acquired by noninterspousal bequest, devise, or descent nonmarital, along with income from nonmarital assets unless treated as marital. What is not automatic: protection against commingling and interspousal-gift transmutation (Hooker v. Hooker, 220 So. 3d 397 (Fla. 2017) — where assets became marital despite a valid prenup), against marital-effort appreciation (§ 61.075(6)(a)1.b.; Kaaa v. Kaaa), and against your spouse's death-time rights in what you leave behind. Those are the gaps a prenup closes.

I expect an inheritance but haven't received it yet. Can a prenup cover it?

Yes — and that is exactly when to sign. § 61.079(4)(a)1. lets the parties contract about rights in property 'whenever and wherever acquired,' which reaches property acquired later, and the disclosure schedules can honestly describe an expected inheritance without guaranteeing it. Waiting until the inheritance arrives means negotiating a postnuptial agreement instead, with less leverage and more scrutiny.

My will already leaves everything to my children. Why do I need a prenup too?

Because Florida law overrides your will for a surviving spouse. The elective share gives a spouse 30% of the elective estate regardless of what the will says — and § 732.2035 pulls your revocable trust and other nonprobate assets into that pool. Add homestead rights, intestate share, exempt property and family allowance. Only a valid waiver — a prenup or marital agreement satisfying § 732.702, signed before two subscribing witnesses — makes the will control.

What is the two-witness rule everyone mentions?

§ 61.079(10) preserves the formalities of § 732.702 for waivers of death-time spousal rights, and § 732.702(1) requires the waiving party to sign in the presence of two subscribing witnesses. A prenup signed without them can leave the lifetime provisions enforceable while the elective-share waiver fails — the worst of both worlds for an inheritance plan. Sign with two witnesses and a notary.

How do I keep an inheritance separate during the marriage?

The prenup should prescribe the hygiene and the spouses should follow it: keep inherited funds in a separate account in your sole name, never retitle inherited assets jointly, don't use marital funds to pay an inherited property's mortgage or improvements (Kaaa), and document tracing. Hooker shows why conduct matters: joint titling and use can transmute nonmarital property by interspousal gift even with a valid prenup in place.

Can my parents require a prenup before leaving me an inheritance?

Parents increasingly make a prenup part of the family's wealth-transfer conversation, and Florida policy supports marital agreements — since Del Vecchio v. Del Vecchio, 143 So. 2d 17 (Fla. 1962), fairly negotiated antenuptial agreements have been treated as consistent with public policy. For structures involving trusts, see our trust-beneficiary prenup page; either way, the agreement must be voluntary, disclosed, and negotiated with time to survive § 61.079(7)(a) and Casto.

What happens to gifts my spouse and I received together, or gifts between us?

Different rules. Assets either spouse acquires by noninterspousal gift are nonmarital (§ 61.075(6)(b)2.) — but gifts between spouses during the marriage are marital (§ 61.075(6)(a)1.c.), and Hooker shows courts finding interspousal gifts from conduct (titling, delivery, control). A prenup can define in advance what counts as a gift between you and what never does.

Official Sources & Related Reading

The information on this page is for general informational purposes only and does not constitute legal advice, and it does not address the law of any state or country other than Florida except as expressly noted. Reading or sharing this content does not create an attorney-client relationship with Pazos Law Group. Immigration law is federal and highly fact-specific; consult an immigration attorney about visa matters. Florida law and the application of statutes change over time; please consult a licensed Florida attorney about your specific situation, and counsel licensed in any other state or country whose law may apply.