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What Happens to a Prenup When a Spouse Dies in Florida?

By Nadia Pazos, Family Law Attorney, Pazos Law Group · Updated

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

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.

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)).

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