Waiver of Spousal Rights in Florida: Fla. Stat. § 732.702 (2026)
Quick Answer
Can a Florida prenuptial agreement waive inheritance rights? Yes. Fla. Stat. § 732.702(1) allows a surviving spouse’s rights — elective share, intestate share, pretermitted share, homestead, exempt property, family allowance and others — to be waived “wholly or partly, before or after marriage.” The formality is stricter than an ordinary prenuptial agreement: the waiver must be “signed by the waiving party in the presence of two subscribing witnesses.” Disclosure is required only where the waiver is signed after marriage.
What Does Fla. Stat. § 732.702 Govern?
Section 732.702 sits in the Florida Probate Code, not the dissolution statutes. It governs whether a spouse may give up the rights Florida law gives a surviving spouse at death, and what formalities that surrender requires. It is the provision a prenuptial or postnuptial agreement relies on when it says the parties waive claims against one another’s estates.
This matters because § 61.079, the premarital agreement statute, governs property and support on divorce. It does not by itself dispose of the rights a surviving spouse has at death. Those come from the Probate Code, and § 732.702 is the door through which they are waived.
§ 732.702(1) — Exact Text and the Rights That Can Be Waived
The operative language of subsection (1) reads:
“The rights of a surviving spouse to an elective share, intestate share, pretermitted share, homestead, exempt property, family allowance, or to assert a claim under the Florida Uniform Disposition of Community Property Rights at Death Act as described in ss. 732.216-732.228, and preference in appointment as personal representative of an intestate estate or any of those rights, may be waived, wholly or partly, before or after marriage, by a written contract, agreement, or waiver, signed by the waiving party in the presence of two subscribing witnesses.”
Read closely, the subsection does three things at once. It lists the rights that may be surrendered. It confirms the waiver may be partial rather than total. And it fixes the execution formality.
- Elective share — the 30 percent claim under § 732.2065.
- Intestate share — what the spouse would take if there were no will.
- Pretermitted share — the share of a spouse married after the will was executed.
- Homestead — the constitutional protection that otherwise overrides a devise.
- Exempt property and family allowance — statutory entitlements taken off the top of an estate.
- Community property claims under ss. 732.216–732.228.
- Preference in appointment as personal representative of an intestate estate.
A right not named in that list is not waived by § 732.702. The subsection is a closed enumeration, which is why a waiver clause drafted loosely — “each party waives all claims against the other’s estate” — is weaker than one that tracks the statutory language.
Why § 732.702 Requires Two Subscribing Witnesses
This is the single most consequential difference between a prenuptial agreement and an estate-rights waiver, and the most commonly missed.
§ 61.079(3) requires only that a premarital agreement “be in writing and signed by both parties.” No witnesses. No notary. Section 732.702(1), by contrast, requires the waiving party to sign “in the presence of two subscribing witnesses.”
The practical consequence: an agreement executed to the § 61.079 standard can be entirely valid as to property and alimony on divorce, and still fail as a waiver of estate rights, because it was not witnessed. The same document, two different tests. Florida practitioners execute marital agreements with two witnesses and a notary as a matter of routine for exactly this reason.
§ 732.702(2) — Disclosure Is Required Only After Marriage
Subsection (2) provides: “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.”
The conditional is the whole point. A waiver signed before the marriage carries no statutory disclosure requirement under this section. A waiver signed after the marriage does. Spouses owe each other duties that engaged people do not, and the statute reflects that.
For couples, that is a timing advantage available only once. It is lost on the wedding day. It is also why a postnuptial waiver is a materially harder document to make stick than a premarital one.
Note what subsection (2) does not do: it does not remove the general contract defences. A waiver signed before marriage without disclosure is not automatically immune from challenge on other grounds; it is simply not vulnerable on the ground this subsection would otherwise create.
§ 732.702(3) — No Consideration Beyond the Agreement
Subsection (3) states that “No consideration other than the execution of the agreement, contract, or waiver shall be necessary to its validity, whether executed before or after marriage.”
In plain terms, the spouse giving up estate rights does not have to be paid, or given something in exchange, for the waiver to be valid. The agreement itself is the consideration. This parallels § 61.079(3), which makes a premarital agreement “enforceable without consideration other than the marriage itself.”
Amendment History of § 732.702
The section carries the following history note: s. 1, ch. 74-106; s. 39, ch. 75-220; s. 14, ch. 77-87; s. 56, ch. 2001-226; s. 10, ch. 2024-238.
The most recent amendment is ch. 2024-238. Anyone relying on an older secondary summary of this section should read the current text rather than a pre-2024 restatement, and should confirm the version in force on the date the waiver was signed — the formalities that govern a document are the ones in effect when it was executed.
How § 732.702 Works With a Prenuptial Agreement Under § 61.079
A well-drafted Florida marital agreement is doing two jobs under two statutes at once.
- Divorce outcomes are governed by § 61.079, with enforceability tested under § 61.079(7)(a).
- Death outcomes are governed by the Probate Code, with the waiver operating under § 732.702.
The two tracks have different formalities, different disclosure rules and different challenge routes. An agreement that satisfies one and not the other leaves half the plan exposed. Couples who care most about what happens at death — second marriages, blended families, an inheritance or a family business meant to stay on one side — are relying on the § 732.702 half more heavily than they usually realise.
What § 732.702 Does Not Do
It does not waive a child’s rights. It does not substitute for a will or a trust — it removes the surviving spouse’s statutory claims, but something still has to direct where the property goes. And it does not cure a defect in the underlying agreement: if the contract itself is unenforceable, the waiver clause inside it does not stand alone.
Frequently Asked Questions
Does a Florida prenup automatically waive inheritance rights?
No. A premarital agreement governs divorce outcomes under § 61.079. Waiving a surviving spouse’s rights requires a waiver that satisfies § 732.702, including the two-subscribing-witness formality.
Does a waiver of spousal rights have to be notarised?
Section 732.702(1) requires two subscribing witnesses. It does not state a notary requirement. Notarisation is common practice and useful evidentially, but the witnesses are what the subsection names.
Can a waiver be partial?
Yes. The subsection says the rights may be waived “wholly or partly.” A couple can waive the elective share while preserving homestead rights, or any other combination.
Is financial disclosure required before signing?
Under § 732.702(2), fair disclosure of the estate is required only where the waiver is executed after marriage. No disclosure requirement is imposed by this subsection on a waiver signed before marriage.
Can spouses waive rights after they are already married?
Yes — the subsection expressly permits waiver “before or after marriage.” A post-marriage waiver carries the disclosure requirement in subsection (2).