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Prenuptial Agreements: Before you put a ring on it

By Howard C. Stross
May 19, 2014

It’s the middle of the Florida spring and summer wedding season. However, before you tie the knot, you should make sure that you and your future spouse are on the same page. Using a prenuptial agreement can make you think about the future and clear the air before the wedding.

Many people only think of prenuptial agreements as protection in the case of a divorce. Prenuptial agreements can also be an important part of estate planning. Getting married automatically changes your estate plan. Below are two myths that aren’t true in Florida.

Myth 1: I bought the house before we got married and her name’s not on the deed so it’s mine.

Maybe you bought your home years before you got married. You paid the down payment and many months of mortgage payments. Maybe you have even paid it off. It could be a home that’s been in your family for generations. When you are married, your spouse automatically has an interest in your Florida homestead real property. A prenuptial agreement or postnuptial agreement is needed if you want a different arrangement.

Myth 2: As long as we keep it separate, what’s mine is mine and what’s yours is yours.

This myth can be especially confusing because to some extent it’s true in the case of a divorce, but it is not true in the case of a death. Prenuptial agreements are often considered in second marriage situations. You may have children from a prior marriage that you want to be your main beneficiaries. You may even have an estate plan already in place which leaves everything to your kids. Even if you tell each other you want to keep things separate, this may not happen without the help of a prenuptial agreement. Regardless of what your current estate plan says, in Florida your spouse is automatically entitled to receive at least 30% of your estate when you pass away unless a prenuptial agreement or postnuptial agreement provides differently. You may think that your spouse will never exercise this right to claim 30% of your estate, but if your spouse is incapacitated this decision may be made by their children. Also, if you don’t have an estate plan, your spouse could be entitled to even more. Read our prior blog on what happens if someone dies intestate (without a will). Your spouse could receive 50% to 100% of the probate estate.

Don’t procrastinate.

While it may not be as enjoyable as cake tasting, as part of your pre-wedding planning, you and your future spouse should discuss your goals. You should be on the same page when it comes to finances and children. If you decide to use a pre-nuptial agreement it’s important to start the process well ahead of when you send out invitations. You should have enough time for both of you to review it with separate attorneys.

This article is for information only and is not intended to provide legal advice. Would you like to know more about how a prenuptial agreement can be used as part of your estate plan? Call us at 813-852-6500 to schedule a free consultation with an estate planning attorney.

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The lawyers at the Stross Law Firm, P.A. invite you to call or e-mail to arrange a free 30-minute consultation regarding your legal and advisory needs concerning business law, real estate, estate planning, probate and trust administration. We serve clients throughout Florida. Find out how we work and how we may be able to help you.