Florida High-Net-Worth Prenup Attorney for Founders, Partners and Investors

The Five Ways a Premarital House or LLC Becomes Marital

Owning the property or the company before the wedding does not settle the question. Fla. Stat. § 61.075(6) names the specific routes by which a non-marital asset acquires a marital component. A premarital agreement under § 61.079(4)(a)1. can address each one — but only if it names it.

What does Florida law actually let a prenuptial agreement control?

Florida adopted the Uniform Premarital Agreement Act in 2007; it is codified at Fla. Stat. § 61.079 and, by § 61.079(1), applies only to proceedings under the Florida Family Law Rules of Procedure. Two definitional points matter more to a large estate than anything in the negotiation. First, § 61.079(2)(a) defines a premarital agreement as one “made in contemplation of marriage and to be effective upon marriage” — which is why § 61.079(5) makes it effective on marriage and no earlier. Second, the statutory definition of property is deliberately wide:

“‘Property’ includes, but is not limited to, an interest, present or future, legal or equitable, vested or contingent, in real or personal property, tangible or intangible, including income and earnings, both active and passive.” — Fla. Stat. § 61.079(2)(b)

The statute permits an agreement to address contingent, future, and equitable interests, subject to other applicable law: an unfunded trust remainder, an unexercised option, a capital account in a fund, an earn-out. So are income and earnings, active and passive — a distinction that decides how distributions from a nonmarital portfolio are treated.

§ 61.079(4)(a) then lists eight permitted subjects, which read better as a drafting checklist than as boilerplate:

• § 61.079(4)(a)1. — rights and obligations in property of either or both, “whenever and wherever acquired or located.”
• § 61.079(4)(a)2. — the right to buy, sell, transfer, encumber, or otherwise manage and control property during the marriage.
• § 61.079(4)(a)3. — disposition of property on separation, dissolution, death, or any other stated event.
• § 61.079(4)(a)4. — establishing, modifying, waiving, or eliminating spousal support.
• § 61.079(4)(a)5. — the making of a will, trust, or other arrangement to carry out the agreement.
• § 61.079(4)(a)6. — ownership rights in and disposition of the death benefit from a life insurance policy.
• § 61.079(4)(a)7. — the choice of law governing construction of the agreement.
• § 61.079(4)(a)8. — any other matter not violating Florida public policy or a law imposing a criminal penalty.

After the wedding, § 61.079(6) permits amendment, revocation, or abandonment only by a written agreement signed by the parties, again enforceable without consideration. After a liquidity event, new holding company, or other material change, the parties can review whether a written amendment under that subsection is appropriate.

Why does a business you owned before the wedding become partly marital?

Start with the favourable rule. Under § 61.075(6)(b)1., assets acquired before the marriage — and assets acquired in exchange for them — are nonmarital. A company owned on the wedding day starts out as separate property, and so does the entity that later replaces it in an exchange of interests.

Then read the provision that does most of the damage in high-net-worth cases:

“The enhancement in value and appreciation of nonmarital assets resulting from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both.” — Fla. Stat. § 61.075(6)(a)1.b.

The statute identifies two sources of potentially marital enhancement or appreciation: efforts by either party and contributions or expenditures of marital funds. The facts still must connect those efforts or funds to the claimed increase in value. This can matter when an owner operates the business, a spouse works in it, or marital funds pay expenses tied to a nonmarital asset.

The evidentiary burden compounds it. § 61.075(8) presumes everything acquired after the date of marriage is marital and places the burden of overcoming that presumption on the party claiming otherwise. And § 61.075(11) abolished special equity, directing that such claims be asserted either as a request for unequal distribution under subsection (1) or “as a claim of enhancement in value or appreciation of nonmarital property” — which channels the dispute straight back into § 61.075(6)(a)1.b.

The premarital agreement is the direct answer, because § 61.075(6)(b)4. classifies as nonmarital those assets and liabilities “excluded from marital assets and liabilities by valid written agreement of the parties,” together with anything acquired in exchange for them. The clause that matters is not the one naming the company; it is the one addressing enhancement, appreciation, and reinvested earnings.

An LLC Holding Rental Property: the Membership Interest, the Distributions, and the Real Estate Are Three Different Assets

Clients say “my membership interest.” The Florida Revised LLC Act never defines that phrase — the statutory asset is the “transferable interest,” defined at § 605.0102(66) as “the right… to receive distributions from a limited liability company in accordance with the operating agreement,” and § 605.0501 disposes of its character in one sentence: “A transferable interest is personal property.” The rental buildings are titled to the company, not to you. A prenup that schedules “my three rental properties in Miami-Dade” as the member’s separate assets misdescribes what the member owns — the member’s asset is the interest; the LLC owns the real estate.

So the drafting names three assets separately, because Florida law treats them separately:

• The transferable interest itself — personal property under § 605.0501, nonmarital if acquired before the marriage under § 61.075(6)(b)1., with its active appreciation from your own management reachable through § 61.075(6)(a)1.b.
• The rental income that reaches you — a “distribution” on account of a transferable interest under § 605.0102, and nonmarital under § 61.075(6)(b)3. only until it is “treated, used, or relied upon by the parties as a marital asset.” The agreement should say which account the distributions land in and what happens if they pay household bills.
• The real estate inside the company — reached indirectly through the interest’s value, which is why the valuation-method clause below matters more than the schedule naming the parcels.

One more interaction the statute states and most agreements ignore: under § 605.0502(6), a transfer of a transferable interest “in violation of a restriction on transfer contained in the operating agreement is ineffective” as to a person with notice of the restriction, and under § 605.0502(1)(c) a transferee takes no management or records rights — only the economic slice. If your operating agreement restricts transfers, the prenup and the operating agreement need to be drafted to point the same way, or a divorce-court award can collide with the company documents. Nadia Pazos drafts the prenup against the operating agreement, not around it, for members of Florida and out-of-state LLCs holding rental and investment property.

The Intangibles — Where Most of the Value Is, and Where Most Agreements Go Quiet

§ 61.079(2) defines property as an interest in real or personal property, “tangible or intangible”, including income and earnings, both active and passive. The word intangible is doing a great deal of work in a founder’s or partner’s case, because that is where the value usually sits — and it is the part a generic agreement never names.

Name them individually. An agreement that says “the business” and stops leaves each of these arguable:

• Enterprise goodwill, and separately personal goodwill attached to the owner rather than the entity — the distinction that decides how much travels with the business at all.
• Customer and client lists, contracts, and the recurring-revenue book built on them.
• Intellectual property — patents and applications, trademarks and the brand, copyrights, source code, trade secrets and know-how.
• Licences, franchises and regulatory approvals that are not freely transferable.
• Non-competes and employment agreements whose value is bound to a named person.
• Carried interest, profits interests and unvested equity — interests § 61.079(2) reaches expressly, because it covers interests that are future and contingent.
• Retained earnings and undistributed profits left inside the entity rather than drawn.

Name the Valuation Method, Because the Statute Does Not

Florida gives you arithmetic for exactly one thing: § 61.075(6)(a)1.c. prescribes the coverture fraction for passive appreciation on mortgaged non-marital realty. For everything else — and in particular for the enhancement in value from either party’s efforts under § 61.075(6)(a)1.b. — the statute declares the result marital and prescribes no method of getting to a number.

That silence is why two competent experts can produce very different figures for the same company, and why the agreement should settle the method in advance rather than the outcome alone. The terms worth fixing in writing:

• Which approach governs — asset-based, market/comparable-transaction, or income-based such as capitalisation of earnings or discounted cash flow — and who chooses.
• Whether discounts apply for lack of control or lack of marketability, since those alone can move a valuation substantially.
• The valuation date, and whether it is the date of filing, separation or something else.
• Who the appraiser is and how one is appointed if the parties disagree.
• Whether the other spouse waives the right to compel a formal appraisal or to subpoena entity records.
• How an existing buy-sell agreement, operating agreement or shareholder agreement interacts — including transfer restrictions and voting rights, so no interest passes to a spouse who was never meant to hold one.

§ 61.079(4)(a)2. expressly permits contracting over the right to manage and control property, which is the hook for the control and transfer provisions. § 61.075(6)(b)4. is the hook for the classification itself.

How does a Florida court value a closely held business or fund interest?

Chapter 2024-237, Laws of Florida, effective 1 July 2024, added § 61.075(6)(a)1.f., which for the first time writes a valuation standard into the statute. Sub-sub-subparagraph (I) fixes fair market value as the standard of value. Sub-sub-subparagraph (II) is the operative rule for owner-operators:

“If there is goodwill separate and distinct from the continued presence and reputation of the owner spouse, it is considered enterprise goodwill, which is a marital asset that must be valued by the court.” — Fla. Stat. § 61.075(6)(a)1.f.(II)

Sub-sub-subparagraph (III) adds that evidence a sale would require a covenant not to compete does not, on its own, preclude a finding of enterprise goodwill. For a professional practice or a founder-dependent services business, the enterprise/personal goodwill line is frequently the largest number in the case. For a holding company, a fund interest, or a real estate partnership it usually is not — there the argument runs to discounts for lack of marketability and control, which the statute leaves to the evidence.

Timing is a separate lever. Under § 61.075(7) the cut-off for classifying an asset as marital is the earliest of a valid separation agreement, a date that agreement sets, or the filing of the petition. The date for valuing it is whatever the judge “determines is just and equitable under the circumstances,” and the subsection expressly allows different assets to be valued as of different dates. A carefully drafted agreement can specify a valuation method, appraiser-selection process, or contractual valuation date. Whether a particular term controls depends on the agreement’s validity, scope, and application to the asset.

For the mechanics of a contested valuation after a marriage has ended, see dividing a business in a Florida divorce.

What happens to inherited wealth, family gifts, and trust distributions?

Inherited and gifted wealth begins protected. § 61.075(6)(b)2. makes nonmarital any asset “acquired separately by either party by noninterspousal gift, bequest, devise, or descent,” plus assets acquired in exchange for it. § 61.075(6)(b)6. covers real property acquired the same way, so long as legal title has not been transferred to the parties as tenants by the entireties.

Income is where families lose the protection without noticing:

“All income derived from nonmarital assets during the marriage unless the income was treated, used, or relied upon by the parties as a marital asset.” — Fla. Stat. § 61.075(6)(b)3.

Trust distributions or portfolio income routed into a joint account and spent on household expenses for a decade is precisely the fact pattern that clause describes. An agreement can state how identified distributions and income will be classified and can pair that term with an account-titling and recordkeeping protocol. Keeping the parties’ conduct consistent with the agreement reduces ambiguity.

Titling carries its own statutory consequences. § 61.075(6)(a)2. presumes real property held as tenants by the entireties to be marital, whether acquired before or during the marriage; § 61.075(6)(a)3. applies the same presumption to jointly titled personal property; and § 61.075(6)(a)4. requires clear and convincing evidence to overcome the gift presumption. Under § 61.075(6)(a)1.d. an interspousal gift of real property cannot be made at all without a writing complying with § 689.01. Adding a spouse to the deed of an inherited house can create a marital-property presumption and should be reviewed before the transfer is signed.

How is real property — including passive appreciation — divided?

Since 2018 Florida has had a statutory formula for the marital share of a mortgaged nonmarital property. § 61.075(6)(a)1.c. makes marital both the principal paid down from marital funds and a portion of the passive appreciation, computed by multiplying that passive appreciation by a coverture fraction. The numerator is the total principal paid from marital funds on all notes and mortgages during the marriage; the denominator is the value of the property at marriage, at acquisition, or at the first such encumbrance, whichever is latest. The formula is not discretionary:

“The court shall apply the formula specified in this subparagraph unless a party shows circumstances sufficient to establish that application of the formula would be inequitable under the facts presented.” — Fla. Stat. § 61.075(6)(a)1.c.(V)

That codification followed Kaaa v. Kaaa, 58 So. 3d 867 (Fla. 2010), where the Florida Supreme Court held that passive appreciation on nonmarital real property can be subject to equitable distribution when marital funds paid down the encumbrance. For a couple holding several encumbered properties — a residence, a rental, land held through an LLC — the calculation runs separately for each, and sub-sub-subparagraph (IV) caps the total marital portion at the net equity in the property on the valuation date.

An agreement can displace the formula outright for identified properties, or keep the formula and instead fix in advance which account counts as “marital funds” for mortgage service. The second approach is often easier for the other party to accept and produces the same clarity.

Retirement Is Usually the Largest Marital Asset, and the Statute Names It Explicitly

People planning a prenup think about the house and the business. In a great many Florida marriages the biggest marital asset is neither — it is what accrued in retirement plans while the marriage ran. § 61.076(1) is unusually direct about it:

“All vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs are marital assets subject to equitable distribution.”

Two words in that sentence do most of the work. “Nonvested” means an interest you cannot yet touch is still divisible — unvested employer contributions, a pension not yet earned out, restricted units still inside their cliff. And “accrued during the marriage” means the account is split by when the balance was built, not by whose name is on it.

So the practical exercise for any plan you bring into the marriage is to fix its value on the wedding day and say what happens to everything after. Name the vehicles individually rather than writing “retirement accounts”:

• 401(k), 403(b) and 457 plans — including the employer match and any true-up.
• Traditional and Roth IRAs, and any SEP or SIMPLE for the self-employed.
• Defined-benefit pensions, where the marital portion is a fraction of a future stream rather than a present balance.
• Federal plans — the Thrift Savings Plan, and FERS or FSPS annuities.
• Profit-sharing and deferred compensation, both named in the section.
• Annuities and cash-value insurance, also named — life insurance separately reachable under § 61.079(4)(a)6.
• Stock plans that vest over time, which § 61.079(2) reaches because it covers future and contingent interests.

A clause that works states the balance and the statement date for each plan, says whether post-marital growth on the premarital balance stays separate, and addresses contributions made during the marriage from marital earnings — because those are the ones § 61.076(1) reaches. Where a plan is a pension rather than an account, it also fixes the valuation method, since the marital share is a calculation and not a number.

None of this survives on generic language. “Each party keeps their own retirement” does not answer what happens to fifteen years of contributions made while married.

The One Waiver Your Prenup Cannot Make

Everything above is Florida law. The largest single exception to it is federal, it is written down in plain terms, and most premarital agreements never mention it.

Where a retirement plan is governed by I.R.C. §§ 401(a)(11) and 417 — the qualified joint and survivor annuity and preretirement survivor annuity rules — the participant cannot waive the survivor benefit without the spouse’s consent. The Treasury regulation asks the exact question a prenup raises, and answers it:

Q-28: Does consent contained in an antenuptial agreement or similar contract entered into prior to marriage satisfy the consent requirements of sections 401(a)(11) and 417?

A-28: No. An agreement entered into prior to marriage does not satisfy the applicable consent requirements, even if the agreement is executed within the applicable election period.

26 C.F.R. § 1.401(a)-20, Q&A-28

The reason is structural rather than technical. The consent has to come from a spouse, and on the day the premarital agreement is signed there is no spouse — there is a fiancée. The same regulation makes the point again at Q&A-29: a consent given by one spouse “is binding only with respect to the consenting spouse.”

So a Florida premarital agreement can allocate the account balance between the two of you, and § 61.076(1) governs how much of it is marital — but it cannot, on its own, strip the survivor benefit out of a plan that carries one. What works is a two-step: the agreement records the bargain and adds a covenant to sign the plan’s own spousal consent form after the wedding, and then that form is actually signed, witnessed as the plan requires, and filed with the administrator. An agreement that stops at step one leaves the largest asset on the list only half-handled.

This is also why “retirement accounts” is not one category. The consent rule above attaches to plans governed by §§ 401(a)(11) and 417; it is not the rule for every vehicle a client calls a retirement account. Which plan documents govern which account is the first question worth answering, before any language is drafted.

What about retirement plans, deferred compensation, and life insurance?

Deferred compensation is not a grey area in Florida. § 61.076(1) is categorical:

“All vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs are marital assets subject to equitable distribution.” — Fla. Stat. § 61.076(1)

The same list appears at § 61.075(6)(a)1.e. Note the two limiting words: accrued and during the marriage. Balances contributed before the wedding remain nonmarital under § 61.075(6)(b)1.; growth on them is tested against § 61.075(6)(a)1.b. An agreement can fix the pre-marriage balance by stipulated figure rather than leaving a decades-old statement to be reconstructed, and can address non-qualified deferred compensation and unvested awards that no plan administrator will ever segregate for you. Related reading: dividing retirement accounts in a Florida divorce.

Life insurance sits in two places at once. The plan itself falls within § 61.076(1), while § 61.079(4)(a)6. separately authorises the parties to contract about ownership rights in and disposition of the death benefit — the provision to use where a policy funds a buy-sell agreement or an irrevocable trust.

Can a prenup waive alimony under Florida’s current statute?

Yes. § 61.079(4)(a)4. expressly permits the parties to establish, modify, waive, or eliminate spousal support. What has changed is the baseline the waiver is measured against. Since the 2023 reform, § 61.08(1)(a) lists the available forms exhaustively:

“In a proceeding for dissolution of marriage, the court may grant alimony to either party in the form or forms of temporary, bridge-the-gap, rehabilitative, or durational alimony, as is equitable.” — Fla. Stat. § 61.08(1)(a)

Permanent alimony is absent from that list. The remaining forms are bounded by number. Bridge-the-gap may not exceed 2 years under § 61.08(6). Rehabilitative may not exceed 5 years under § 61.08(7)(c). Durational is unavailable after a marriage lasting under 3 years, and § 61.08(8)(b) caps it at 50 percent of the length of a short-term marriage, 60 percent of a moderate-term marriage, or 75 percent of a long-term marriage — brackets that § 61.08(5) sets by rebuttable presumption at under 10 years, 10 to 20 years, and 20 years or longer. § 61.08(8)(c) caps the amount at the lesser of the obligee’s reasonable need or 35 percent of the difference between the parties’ net incomes.

One statutory floor survives any waiver. Under § 61.079(7)(b), if a support provision leaves one party eligible for public assistance at separation or dissolution, the court may order support notwithstanding the agreement — but only to the extent necessary to avoid that eligibility. In practice, high-net-worth agreements more often set a formula (a fixed sum per year of marriage, or a schedule of lump-sum payments) than a bare waiver, because a term with real economic content is a much harder target under § 61.079(7)(a)3.

Does a prenup also waive the elective share, homestead, and exempt property?

Only if it is executed the way the Probate Code requires, which is not the way § 61.079(3) requires. This is the most common technical defect on an otherwise sophisticated agreement.

The stake is defined by § 732.2065: “The elective share is an amount equal to 30 percent of the elective estate.” Because the elective estate reaches well beyond probate assets, 30 percent of it can dwarf anything at issue in a dissolution. The waiver mechanism is § 732.702(1):

“The rights of a surviving spouse to an elective share, intestate share, pretermitted share, homestead, exempt property, family allowance … 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.” — Fla. Stat. § 732.702(1)

Three consequences follow. First, two subscribing witnesses are required, while § 61.079(3) requires only a writing signed by both parties and does not require notarisation at all. An agreement that satisfies Chapter 61 but not § 732.702(1) can be fully enforceable on divorce and ineffective on death. Second, the same subsection provides that a waiver of “all rights,” or equivalent language, in the property or estate of a present or prospective spouse operates as a waiver of every right on that list — so the phrase carries far more freight than it appears to. Third, § 732.702(2) requires fair disclosure of the estate only where the waiver is executed after marriage; the statute states that “no disclosure shall be required for an agreement, contract, or waiver executed before marriage.” That is a concrete advantage of doing this work before the wedding rather than after. § 732.702(3) adds that no consideration beyond execution is necessary.

Chapter 61 does not override any of this. § 61.079(10) provides that the Premarital Agreement Act “does not alter the construction, interpretation, or required formalities of, or the rights or obligations under, agreements between spouses under s. 732.701 or s. 732.702.” Both statutes must be satisfied, in the same document, on the same day.

For foreign entities, offshore holdings, overseas residences or a non-U.S. spouse, begin with our international prenup service guide and our 2026 inquiry trends.

Can we choose another state’s law for offshore and cross-border holdings?

Florida expressly allows it. § 61.079(4)(a)7. lists “the choice of law governing the construction of the agreement” among the permitted subjects, and Florida courts have enforced such provisions in premarital agreements — see Waton v. Waton, 887 So. 2d 419 (Fla. 4th DCA 2004). A choice-of-law clause is not a shield against Florida public policy, and § 61.079(4)(a)8. makes that limit explicit for every other subject as well.

The location of an asset is irrelevant to classification. § 61.079(4)(a)1. reaches property “whenever and wherever acquired or located,” and nothing in § 61.075(6)(a)1.a. limits marital assets to those situated in the United States. A foreign holding company, an apartment abroad, or a non-U.S. brokerage account can all form part of the marital estate. The practical constraints are proof and enforcement rather than characterisation, which is why courts frequently equalise with a money judgment instead: § 61.075(10)(a) permits a monetary payment in a lump sum or in installments in lieu of, or to supplement, division in kind, and § 61.075(10)(b) lets the court require security and a reasonable rate of interest on installments.

Where each party holds assets in a different country, the agreement should be reciprocal, translated, and executed with the formalities of both jurisdictions. See also international and cross-border divorce in Florida and, for equity-specific drafting, prenups for startup founders and equity owners.

What statutory grounds can prevent enforcement of a Florida prenup?

Section 61.079(7)(a) lists three categories in proceedings governed by the Act. § 61.079(7)(a) makes the agreement unenforceable if the party resisting it proves:

“1. The party did not execute the agreement voluntarily; 2. The agreement was the product of fraud, duress, coercion, or overreaching; or 3. The agreement was unconscionable when it was executed and, before execution of the agreement, that party: a. Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party; b. Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and c. Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.” — Fla. Stat. § 61.079(7)(a)

The conjunction in subparagraph 3 is “and,” not “or.” Unconscionability alone is not enough: the challenger must establish unconscionability plus all three of a., b., and c. A signed, itemised financial schedule can provide important evidence about disclosure. Because the elements in subparagraph 3 are cumulative, careful documentation of what was disclosed can materially affect a later analysis.

Two procedural points follow. § 61.079(7)(c) provides that “an issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law” — a judge, not a jury, and reviewable as a question of law. And § 61.079(9) tolls any applicable statute of limitations during the marriage, while preserving equitable defences such as laches and estoppel. The passage of time during the marriage does not eliminate the need for careful drafting and execution.

For the full catalogue of failure modes, see what makes a prenup invalid in Florida.

Important Limits Under Florida Law

Several statutory limits and qualifications matter. § 61.079(4)(b) states flatly that “the right of a child to support may not be adversely affected by a premarital agreement”; child support is computed under the § 61.30 guidelines regardless of what the parties agreed before the child existed. § 61.079(7)(b) preserves the court’s power to order support to avoid public-assistance eligibility. § 61.079(8) provides that where a marriage is determined to be void, the agreement is enforceable only to the extent necessary to avoid an inequitable result. And § 61.079(6) means it cannot be modified by conduct or handshake — only by a signed writing.

A fifth limit is practical rather than statutory: an agreement produced days before a wedding invites exactly the voluntariness challenge § 61.079(7)(a)1. contemplates. An estate requiring appraisals, entity-level disclosure, and review by separate counsel may need substantial lead time. The appropriate schedule depends on the assets, documents, and negotiations.