What Happens to a Prenup When a Spouse Dies in Florida?
Quick Answer
What happens to a prenup when a spouse dies in Florida? It can decide what the surviving spouse receives. Florida gives a surviving spouse rights at death, such as an elective share of “30 percent of the elective estate” (§ 732.2065), and a prenup can waive them. But the waiver has its own formality: under § 732.702(1) it must be a written contract, agreement, or waiver “signed by the waiving party in the presence of two subscribing witnesses.” Without that, the spouse’s rights at death may survive the prenup.
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, in English or Spanish: (305) 482-1262.
The Rights a Surviving Spouse Has Without a Waiver
- Elective share. “The elective share is an amount equal to 30 percent of the elective estate” (§ 732.2065).
- Intestate share (no will). If the decedent leaves no descendants, the surviving spouse takes “the entire intestate estate”; if there are descendants who are not the surviving spouse’s, “one-half of the intestate estate” (§ 732.102(1), (3)).
- Homestead. If the decedent is survived by a spouse and descendants, “the surviving spouse shall take a life estate in the homestead” (§ 732.401(1)), or may elect “an undivided one-half interest in the homestead as a tenant in common” (§ 732.401(2)).
What the Waiver Must Say and How It Must Be Signed
Section 732.702(1) lists the rights that “may be waived, wholly or partly, before or after marriage”: the elective share, intestate share, pretermitted share, homestead, exempt property, family allowance, and preference in appointment as personal representative.
- Two subscribing witnesses. The waiver must be “signed by the waiving party in the presence of two subscribing witnesses” (§ 732.702(1)). This is stricter than the prenup itself, which only “must be in writing and signed by both parties” (§ 61.079(3)).
- “All rights” language. “Unless the waiver provides to the contrary, a waiver of ‘all rights,’ or equivalent language, in the property or estate of a present or prospective spouse” waives all of the listed rights (§ 732.702(1)).
- Disclosure. “No disclosure shall be required for an agreement, contract, or waiver executed before marriage”; after marriage, “Each spouse shall make a fair disclosure to the other of that spouse’s estate” (§ 732.702(2)).
- Signed outside Florida. A waiver “executed by a nonresident of Florida” is valid here “if valid when executed under the laws of the state or country where it was executed” (§ 732.702(1)).
Divorce Terms and Death Terms Are Different Parts of the Prenup
A prenup may cover “The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event” and “The making of a will, trust, or other arrangement to carry out the provisions of the agreement” (§ 61.079(4)(a)3., 5.). It may also cover “The ownership rights in and disposition of the death benefit from a life insurance policy” (§ 61.079(4)(a)6.). The divorce terms and the death terms are drafted, and witnessed, as separate decisions.
Frequently Asked Questions
Does a prenup override a will?
A prenup can require a will or trust to carry out its terms (§ 61.079(4)(a)5.), and a valid § 732.702 waiver removes the surviving spouse’s statutory rights. See how a Florida prenup works with your will.
Do we need a notary?
Not for the prenup itself. The death-rights waiver needs two subscribing witnesses. See Florida prenup notary and witness rules.
Can we sign the waiver after the wedding?
Yes: the rights “may be waived, wholly or partly, before or after marriage,” but after marriage each spouse must make a fair disclosure of that spouse’s estate (§ 732.702(1)–(2)).
Primary Sources
- Fla. Stat. § 732.702 — waiver of spousal rights.
- Fla. Stat. § 732.2065 — amount of the elective share.
- Fla. Stat. § 732.102 — spouse’s intestate share.
- Fla. Stat. § 732.401 — descent of homestead.
- Fla. Stat. § 61.079 — premarital agreements.
Related Reading
- Prenups and inheritance rights in Florida
- What a Florida prenup waives at death
- Protecting an inheritance with a Florida prenup
- Florida prenuptial agreement attorney
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