Florida Prenuptial Agreements for Startup Founders and Equity Owners

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

Quick Answer

Is my startup equity protected in a Florida divorce?

Equity owned before marriage generally begins as nonmarital under Fla. Stat. § 61.075(6)(b)1. However, § 61.075(6)(a)1.b. treats enhancement or appreciation as marital to the extent it results from either party’s efforts or marital funds. A prenup can define how existing equity, later grants, appreciation, and liquidity events will be treated.

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Founders in Miami, Brickell, and Coral Gables increasingly hold their net worth in illiquid equity: a pre-revenue company with a nominal 409A valuation today and a financing round on the horizon. Florida’s default rules were not written with that asset in mind, and they produce results most founders do not expect. Pazos Law Group drafts and reviews prenuptial agreements for founders, early employees, and equity holders across South Florida — in English and Spanish.

The founder’s problem, stated precisely

Three provisions of the equitable distribution statute interact in a way that catches founders off guard:

§ 61.075(6)(b)1. — assets acquired before the marriage are nonmarital. Your pre-marriage cap table position starts out protected.
§ 61.075(6)(a)1.a. — assets acquired during the marriage are marital, individually or jointly. Equity granted, exercised, or purchased after the wedding starts out marital.
§ 61.075(6)(a)1.b. — enhancement in value and appreciation of a nonmarital asset resulting from either spouse’s efforts during the marriage, or from marital funds spent on it, is marital.

The third provision is especially relevant to an active founder because the statute focuses on enhancement or appreciation resulting from either party’s efforts or marital funds. Any marital portion depends on evidence connecting those contributions to the change in value.

Add § 61.075(8): assets acquired by either spouse after the date of marriage that are not specifically established as nonmarital are presumed marital, and the burden is on the person claiming otherwise. In a cap table with grants, refreshes, secondaries, and SAFEs converting across several years, that presumption is a heavy lift to rebut without a written agreement.

Valuation: the pre-Series A trap

Valuation timing can materially affect a founder matter. Under § 61.075(7), the cut-off for classifying assets as marital is the earliest of a valid separation agreement, a date that agreement sets, or the date the dissolution petition is filed. But the date for valuing them is “the date or dates as the judge determines is just and equitable under the circumstances,” and the statute expressly permits different assets to be valued on different dates.

A financing round or liquidity event near separation can make the valuation date significant. A prenup can address valuation methodology, information sources, and a contractual process in advance, subject to the agreement’s validity and application.

Since July 1, 2024, § 61.075(6)(a)1.f. also governs how a Florida court values the marital interest in a closely held business. The standard is fair market value — “the price at which property would change hands between a willing and able buyer and a willing and able seller, with neither party under compulsion to buy or sell.” Goodwill that exists separate and apart from the owner’s continued presence and reputation is enterprise goodwill, a marital asset the court must value; goodwill inseparable from the founder personally is not. That distinction comes from Thompson v. Thompson, 576 So. 2d 267 (Fla. 1991), and is now written into the statute.

What a prenup can settle in advance

Florida adopted the Uniform Premarital Agreement Act at § 61.079. Under § 61.079(4)(a), the parties may contract with respect to the rights and obligations in property, the right to buy, sell, transfer, or otherwise manage property, and the disposition of property on separation or dissolution. They may also establish, modify, waive, or eliminate spousal support. And § 61.075(6)(b)4. expressly recognizes assets excluded from the marital estate “by valid written agreement of the parties.”

For a founder, a well-drafted agreement typically addresses:

The equity itself — which shares, units, options, SAFEs, or convertible instruments are separate property, including instruments issued after the wedding.
Appreciation — whether increases in value, including increases driven by your own work, remain separate. This is the provision that answers § 61.075(6)(a)1.b.
Dilution, refreshes, and secondaries — how later grants and liquidity events are characterized.
Restructurings — a redomiciliation or corporate “flip” from an offshore holding company into a U.S. entity should not silently re-characterize the asset.
Valuation method and date — agreed in advance rather than litigated after a priced round.
Confidentiality — Florida court files are generally public, and cap table detail in a public record is a real commercial concern.

Disclosure is harder when the asset has no price

Under § 61.079(7)(a), a premarital agreement is not enforceable if the party against whom enforcement is sought proves it was not executed voluntarily, or that it was the product of fraud, duress, coercion, or overreaching, or that it was unconscionable when executed and, before execution, that party was not provided a fair and reasonable disclosure of the other’s property and financial obligations, did not voluntarily and expressly waive that disclosure in writing, and did not have (or reasonably could not have had) adequate knowledge of it.

A low or uncertain current value does not make the ownership interest irrelevant. A capitalization table, governing documents, recent financing information, and a candid explanation of valuation uncertainty can create a clearer record of what was disclosed before signing.

Under § 61.079(3), the agreement must be in writing and signed by both parties, and it is enforceable without consideration other than the marriage itself. Notarization is not required by statute. It becomes effective on marriage.

Offshore holding companies and cross-border structures

A foreign-held interest can still raise classification, valuation, disclosure, and enforcement questions in a Florida case. Section 61.075(10) permits a court to use monetary payments to effectuate equitable distribution. Cross-border structures should be reviewed with counsel in the jurisdictions that may matter.

If both fiancés hold equity in different ventures, the agreement should address each interest clearly, and each party should obtain independent advice. See also international and cross-border divorce in Florida and dividing a business in a Florida divorce.

What Florida Courts Have Actually Held

Founders are usually told “your pre-marital equity is safe.” The Florida case law says something narrower, and the distinction is the whole ballgame.

Appreciation caused by your own work during the marriage is marital. In Robbie v. Robbie, 654 So. 2d 616 (Fla. 4th DCA 1995), the Fourth District held that the enhancement in value of a closely held family corporation was a marital asset where a spouse worked for the company during the marriage — and made clear that the spouse need not have been the key decision-maker. Carrying out decisions made by others was still marital labor that enhanced the company. For a founder who spends the marriage building the company, that is the controlling picture.

Even passive appreciation can be marital when marital money is involved. In Kaaa v. Kaaa, 58 So. 3d 867 (Fla. 2010), the Florida Supreme Court held that passive, market-driven appreciation of a nonmarital asset becomes subject to equitable distribution where marital funds and the other spouse’s contributions went into it. The asset itself is not converted — only the enhancement in value is reached — and the trial court must make specific findings to separate the two. Founders who cover a capital call, exercise options, or pay taxes on vesting with marital income are inside this rule.

Once marital effort or money is shown, the burden shifts to you. Yitzhari v. Yitzhari, 906 So. 2d 1250 (Fla. 3d DCA 2005), holds that after the non-owner spouse shows marital labor or marital funds went into a nonmarital asset, it is the owner-spouse who must prove which portion of the enhanced value remains exempt. A founder without contemporaneous records is trying to carry that burden years later from memory.

Goodwill splits in two. Under Thompson v. Thompson, 576 So. 2d 267 (Fla. 1991), goodwill is a marital asset only where it exists separate and apart from the reputation or continued presence of the spouse. Enterprise goodwill is divisible; personal goodwill is not. For an early company whose value is largely the founder, that line decides a great deal of the number.

Marketability discounts are discretionary, not automatic. Erp v. Erp, 976 So. 2d 1234, 1239 (Fla. 2d DCA 2008), holds that a trial court has discretion to decide whether a marketability discount applies to a closely held corporation in a dissolution. Whether illiquid founder stock is discounted — and by how much — is argued, not assumed.

And the gap worth knowing about: Florida’s appellate courts have not squarely addressed how to value pre-revenue or pre-Series A equity in a dissolution. There is no case that tells a trial judge what a founder’s stock in a company with no revenue is worth. That silence is precisely why the valuation method belongs in the agreement rather than in a courtroom — § 61.075(7) leaves the valuation date to whatever the judge decides is just and equitable, and different assets may be valued as of different dates.

A tailored agreement can address the characterization of future appreciation before a liquidity event and document the disclosures exchanged before signing. Those facts can matter if enforcement is later challenged under § 61.079(7)(a).

What a prenup cannot do

Two limits apply regardless of how the agreement is drafted. Child support is determined under § 61.30 and time-sharing under § 61.13 according to the child’s best interests; parents cannot contract away a child’s right to support, and a court is not bound by an agreement that purports to. And an agreement signed under pressure days before a wedding invites exactly the voluntariness challenge that § 61.079(7) contemplates. Start months ahead, not weeks.

Frequently Asked Questions

Is equity I owned before marriage safe in a Florida divorce?

The equity owned before marriage generally begins as nonmarital under Fla. Stat. § 61.075(6)(b)1. Section 61.075(6)(a)1.b. can classify resulting enhancement or appreciation as marital when it is tied to either party’s efforts or marital funds. The amount and characterization depend on the evidence.

What happens to equity granted after we marry?

Assets acquired during the marriage are marital under Fla. Stat. § 61.075(6)(a)1.a., and § 61.075(8) presumes that assets acquired after the date of marriage are marital unless specifically established otherwise, with the burden on the party claiming otherwise. A premarital agreement can define post-marriage grants as separate property by written agreement, which § 61.075(6)(b)4. recognizes.

How is a pre-revenue startup valued in a Florida divorce?

Under Fla. Stat. § 61.075(6)(a)1.f., the standard of value for a closely held business is fair market value, and enterprise goodwill separate from the owner’s continued presence and reputation is a marital asset the court must value. Under § 61.075(7) the judge sets the valuation date as is just and equitable, and different assets may be valued on different dates — which matters enormously around a financing round.

Can a prenup cover a future Series A or a corporate flip?

Fla. Stat. § 61.079(4)(a) permits the parties to contract about their rights in property and the disposition of property on dissolution, so an agreement can address later financing rounds, dilution, secondaries, and a redomiciliation from an offshore entity to a U.S. structure. Drafting should anticipate that the instrument you hold at signing may not be the instrument you hold later.

My company is worth almost nothing today. Do I still need disclosure?

Careful disclosure is prudent. Under Fla. Stat. § 61.079(7)(a)3., unconscionability at execution must be combined with the disclosure, written-waiver, and adequate-knowledge conditions stated in the statute. A current capitalization table, governing documents, recent financing information, and an honest description of valuation uncertainty can create a clearer record than a bare nominal value.

Does a Florida prenup have to be notarized?

Section 61.079(3) does not require notarization; it requires a writing signed by both parties. If the agreement waives elective-share, homestead, or other death-time rights, § 732.702 may require the waiving party to sign in the presence of two subscribing witnesses.

The information on this page is for general informational purposes only and does not constitute legal advice. Outcomes depend on the specific facts and circumstances of each case, and no particular result is guaranteed. Reading or sharing this content, or using this website, 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.