Every married couple in Florida already has a financial agreement. If you do not write your own, Florida law writes it for you. Chapter 61 decides how property is divided and whether alimony is paid if the marriage ends, and the Probate Code decides what a surviving spouse receives at death.

A prenuptial agreement, which Florida calls a premarital agreement, lets you and your future spouse replace those default rules with terms you choose together. Section 61.079, Florida Statutes, Florida’s version of the Uniform Premarital Agreement Act, governs every prenup signed in Florida on or after October 1, 2007.

At the Law Offices of James S. Cunha, P.A. in West Palm Beach, we draft, review and enforce prenuptial agreements for clients throughout Palm Beach County, including Palm Beach, Jupiter, Wellington, Boca Raton and Palm Beach Gardens. This guide explains why a prenup matters and what it takes for one to hold up in a Florida courtroom.

Without a prenup, a Florida court applies the same statutes to you that it applies to everyone else. Those rules often produce results that neither spouse expected on the wedding day.

Issue	Florida default without a prenup	What a prenup can do
Growth of a premarital business or investment	Under § 61.075, the increase in value of a nonmarital asset can become marital if it came from either spouse’s work during the marriage or from marital funds.	Keep the asset and all of its growth separate, or set a formula for sharing it.
Income earned during the marriage	Salaries, bonuses and assets bought with them are generally marital and start from a presumption of equal division.	Define which earnings, accounts, and retirement contributions stay separate.
Commingled accounts and real estate	Mixing separate money into joint accounts or a jointly titled home can turn it marital.	Set tracing rules so separate funds keep their character.
Alimony	Decided by a judge under § 61.08 based on need, ability to pay, and the length of the marriage.	Set, limit, or waive alimony in advance, subject to the public-assistance safeguard in § 61.079(7)(b).
Death of a spouse	A surviving spouse can claim an elective share of 30% of the elective estate, plus homestead and other spousal rights under the Probate Code.	Waive or define those rights, which matters for estate plans and children from a prior relationship.
Cost of a divorce	Disputes over valuation, tracing, and support can require forensic accountants and months of litigation.	Narrow the issues so there is far less to fight about.

The first row is where we see the most surprise. A spouse who owned a company before the wedding often assumes it stays theirs. Under § 61.075, years of marital effort can make much of its growth marital property. Read more in our guide to Florida Statute 61.075 and equitable distribution.

Section 61.079(4) gives couples wide freedom to decide their own financial terms. Under the statute, a prenup can address:

• Each spouse’s rights in property owned now or acquired later, wherever it is located
• How property is bought, sold, managed, and controlled during the marriage
• How property is divided at separation, divorce, or death
• Establishing, modifying, waiving or eliminating spousal support
• Wills, trusts or other arrangements needed to carry out the agreement
• Ownership of life insurance death benefits
• Which state’s law governs the agreement
• Other personal rights and obligations that do not violate public policy or criminal law

What a prenup cannot do. Under § 61.079(4)(b), a prenup cannot adversely affect a child’s right to support. Child support is set under the Florida guidelines no matter what the parents signed. Decisions about parental responsibility and time-sharing are also made by the court based on the child’s best interests at the time of the divorce.

Alimony waivers have a safety valve. Under § 61.079(7)(b), if a waiver of alimony would leave a spouse eligible for public assistance at separation or divorce, the court may order support anyway, to the extent needed to avoid that result.

Waivers of rights at death follow the Probate Code. Section 61.079(10) leaves agreements under §§ 732.701 and 732.702 untouched. A waiver of the elective share, homestead, and other spousal rights at death must meet the Probate Code’s own requirements, including signing in the presence of two subscribing witnesses. A well-drafted prenup satisfies both statutes at once.

A prenup only matters if a court will enforce it. Under § 61.079(3), the agreement must be in writing and signed by both parties, and the marriage itself is all the consideration it needs. It takes effect on the wedding day.

Under § 61.079(7)(a), the spouse challenging the prenup carries the burden. The agreement is unenforceable only if that spouse proves one of three things:

1. They did not sign voluntarily.
2. The agreement was the product of fraud, duress, coercion, or overreaching.
3. The agreement was unconscionable when signed, and, before signing, that spouse:
   • was not given fair and reasonable disclosure of the other’s property and financial obligations;
   • did not voluntarily and expressly waive, in writing, any further disclosure; and
   • did not have, and reasonably could not have had, adequate knowledge of the other’s finances.

Under § 61.079(7)(c), unconscionability is decided by the judge as a matter of law. In practice, most prenup fights turn on how the agreement was made, not how lopsided it looks.

Practices that protect your agreement:

• Start early. Sign well before the wedding. An agreement presented days before the ceremony, with guests booked and deposits paid, invites a duress argument.
• Disclose fully. Attach financial statements listing assets, debts, and income for both parties. A clean disclosure takes the third ground off the table.
• Use separate lawyers. Independent counsel for each spouse is the strongest evidence that both signed knowingly and voluntarily.
• Sign with witnesses. Two subscribing witnesses and a notary satisfy the Probate Code for waivers at death.
• Update it in writing. Under § 61.079(6), after the wedding, a prenup can be amended or revoked only by a written agreement signed by both spouses.

Prenups signed in another state, or before October 1, 2007, may be judged by different rules. If you moved to Palm Beach County with an existing agreement, have it reviewed. For a real-world example of an agreement put to the test, see our analysis of the Costner–Baumgartner prenup under Florida law.

A prenup is not only for the very wealthy. It is sound planning whenever either spouse brings something into the marriage that they want handled on their own terms:

• Business owners and professionals who want to protect a company, practice, or partnership interest, and its future growth
• Spouses with a significant income or net-worth gap, where alimony and property claims could be substantial
• Heirs and beneficiaries of family trusts, inheritances or generational wealth
• People marrying again, especially with children from a prior relationship whose inheritance they want to protect
• Executives and physicians with stock options, deferred compensation, or retirement plans that will grow during the marriage
• Couples who simply want clarity, so that money never becomes the fight it so often does in a divorce

The process has another benefit. Working through a prenup forces an honest, early discussion about money, debt and expectations, which is a healthy start to any marriage.

If a prenup is ever put to the test here, the case is heard in the Family Division of the Fifteenth Judicial Circuit. The judge will look closely at how and when the agreement was signed, so the work done before the wedding is what decides the outcome.

Palm Beach County raises issues that standard forms do not handle well:

• Newcomers and seasonal residents relocating from New York, New Jersey, and other states, often with an existing prenup or assets governed by another state’s law
• Florida homestead property, including oceanfront and estate homes in Palm Beach, Jupiter Island and Manalapan, which carries special protections at death
• Closely held businesses and family offices with valuation and growth questions
• Equestrian, real estate and investment holdings in Wellington and western Palm Beach County
• Second marriages later in life, where estate planning and children’s inheritances are central

Our office at 250 S. Australian Avenue, Suite 1402 is minutes from the courthouse. We represent clients throughout Palm Beach County, including West Palm Beach, Palm Beach, Jupiter, Palm Beach Gardens, Wellington, Boca Raton, Delray Beach, Boynton Beach and Lake Worth Beach, and in Martin, St. Lucie, Okeechobee, Broward and Miami-Dade counties.

A prenup is far easier to get right before the wedding than to defend after it. Whether you are drafting your own agreement, reviewing one your fiancé’s attorney prepared, or enforcing or challenging an existing prenup, contact the Law Offices of James S. Cunha, P.A. at (561) 429-3924 to schedule a confidential consultation at our West Palm Beach office. You can also learn more on our Prenuptial / Antenuptial Agreements in Florida page.

This article provides general information about Florida law and is not legal advice. Reading it does not create an attorney-client relationship. Laws change, and every case depends on its facts.