Prenuptial Agreements for Same-Sex Couples in Florida
Quick Answer
The law is the same; the facts usually are not. Florida’s Uniform Premarital Agreement Act, Fla. Stat. § 61.079, applies to every couple who marries, and since Obergefell v. Hodges, 576 U.S. 644 (2015), Florida must license and recognize same-sex marriages. What is different for many same-sex couples is timing: years built together before marriage was available. Florida draws its property line at the date of the marriage, not the start of the relationship, and it does not recognize common-law marriage. A prenup is where you put that history in writing.
Pazos Law Group, a family law firm in Coral Gables serving Miami-Dade, Broward and Palm Beach counties, drafts and reviews Florida prenuptial and postnuptial agreements for same-sex couples, in English or Spanish: (305) 482-1262.
The Same Statute, the Same Requirements
Nothing in § 61.079 depends on the spouses’ sex. It defines a premarital agreement as “an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage” (§ 61.079(2)(a)). The formalities are the same for everyone: “A premarital agreement must be in writing and signed by both parties” (§ 61.079(3)), and the same grounds for challenging one apply under § 61.079(7)(a), which is why financial disclosure and time to review matter just as much.
You may still see Fla. Stat. § 741.212, the old ban on recognizing same-sex marriages, in the printed statutes. It has no legal effect: federal courts struck down Florida’s ban, and Obergefell requires every state to license and recognize same-sex marriages. A well-drafted agreement relies on the marriage itself and on § 61.079, not on that section.
Years Together Before You Could Marry
For many couples this is the issue that matters most. Florida classifies property by the date of the marriage. § 61.075(6)(a)1.a. makes marital the “assets acquired and liabilities incurred during the marriage, individually by either spouse or jointly by them,” and § 61.075(6)(b)1. makes nonmarital the “assets acquired and liabilities incurred by either party prior to the marriage.” Florida does not treat a long relationship as a marriage: under § 741.211, “No common-law marriage entered into after January 1, 1968, shall be valid.”
For a couple who lived together for ten or fifteen years before marrying, that rule can produce results neither of you intends: a business one partner built during the relationship stays that partner’s separate property, while savings that happened to be put in one name before the wedding stay in that name. § 61.079(4)(a)1. lets you contract over “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,” so the agreement can recognize the relationship as you actually lived it: list what each of you brings, say which pre-marriage assets you treat as shared, and say how contributions made before the wedding are counted.
Property You Already Own Together
Many couples marry already owning a home together, usually as joint tenants or tenants in common. After the wedding, how that property is titled matters. § 61.075(6)(a)2. provides that “All real property held by the parties as tenants by the entireties, whether acquired before or during the marriage, is presumed to be a marital asset.” If you retitle the house after marrying, or refinance with marital money, the classification can change. The prenup should state each partner’s share as of the wedding, whether a retitling changes it, and how mortgage payments made during the marriage are treated. See also Florida prenup rules for real estate and property.
An Earlier Marriage, Civil Union or Domestic Partnership
Some couples married in another state or country before 2015, or registered a civil union or domestic partnership there. Tell your attorney at the first meeting. An earlier legal relationship can affect which date the agreement treats as the start of the marriage, and it may need to be addressed before or in the agreement. § 61.079(4)(a)7. allows the agreement to choose “the choice of law governing the construction of the agreement,” which is useful if you may move or own property elsewhere.
Children, Parentage and Estate Planning
A prenup cannot decide custody, and § 61.079(4)(b) is direct: “The right of a child to support may not be adversely affected by a premarital agreement.” Questions about legal parentage of children born or adopted during the relationship belong in a separate conversation with a family law or estate planning attorney.
What a prenup can do is coordinate with your estate plan. § 61.079(4)(a)5. allows “the making of a will, trust, or other arrangement to carry out the provisions of the agreement,” and § 61.079(4)(a)6. covers life insurance death benefits. Waiving or keeping spousal rights at death (the elective share, homestead) follows § 732.702; see what a Florida prenup can waive at death.
Frequently Asked Questions
Are prenups enforceable for same-sex couples in Florida?
Yes. § 61.079 applies to every marriage, and since Obergefell v. Hodges (2015) Florida must license and recognize same-sex marriages. The agreement must be in writing and signed by both parties (§ 61.079(3)), and it can be challenged only on the grounds in § 61.079(7)(a).
Do the years we lived together before marrying count?
Not automatically. Florida classifies property from the date of the marriage (§ 61.075(6)) and does not recognize common-law marriages entered into after January 1, 1968 (§ 741.211). If you want assets built during those years treated as shared, the prenup is where you say so.
We own a house together already. What happens to it?
By default, each of you keeps the share you held before the wedding. But real property later held as tenants by the entireties is presumed marital under § 61.075(6)(a)2., whenever it was acquired. The agreement should fix each share and say whether a later retitling changes it.
Can our prenup decide custody or child support?
No. Custody is decided by the court based on the child’s best interests, and § 61.079(4)(b) provides that a child’s right to support may not be adversely affected by a premarital agreement.
Do we each need our own lawyer?
Florida does not require it, but one lawyer cannot represent both of you. Independent review makes the agreement much harder to challenge later. See do both parties need a lawyer for a prenup in Florida.
Primary Sources
- Fla. Stat. § 61.079 — premarital agreements: (2)(a) definition, (3) formalities, (4) permitted subjects and child support, (7)(a) enforcement.
- Fla. Stat. § 61.075 — equitable distribution: (6)(a)1.a. and (6)(b)1. on the date-of-marriage line, (6)(a)2. on tenancy by the entireties.
- Fla. Stat. § 741.211 — common-law marriages void after January 1, 1968.
- Fla. Stat. § 732.702 — waiver of spousal rights at death.
- Obergefell v. Hodges, 576 U.S. 644 (2015) — U.S. Supreme Court opinion (Cornell LII text).