It is commonly believed that only wealthy individuals need prenuptial agreements. On the contrary, a prenuptial agreement may prove valuable even when assets are minimal.
What Can a Prenuptial Agreement Do?
Before diving into how a prenuptial agreement may be beneficial, one should know what a prenuptial agreement can do. For instance, prenuptial agreements can:
- Preserve assets earned before marriage
- Protect separate property
- Define marital property
- Waive alimony
- Support estate planning goals
A Prenuptial Agreement to Limit Risk of Divorce
Without a prenuptial agreement, Florida law dictates what happens upon a dissolution of marriage. Florida law provides that each spouse is entitled to approximately 50% of all marital assets. Marital assets are generally those assets that are earned or acquired during the marriage, but can also include any increase in value of a nonmarital asset or any nonmarital asset that is commingled with a marital asset. Simply keeping assets separately titled does not protect them from being considered a marital asset. In addition to equitable distribution, Florida law allows for an award of alimony depending on the circumstances of the case.
A prenuptial agreement can be used to eliminate equitable distribution, define property rights and waive alimony in case of dissolution of marriage. A prenuptial agreement can therefore provide predictability in case of a dissolution of marriage.
A Prenuptial Agreement as an Effective Estate Planning Tool
Upon the death of a married person who does not have a prenuptial agreement, Florida law provides for certain rights for the surviving spouse. For example, the surviving spouse is entitled, among other things, to approximately one-third of the decedent’s estate and has rights in the decedent’s homestead. These rights cannot be changed by the will or trust of the decedent, but only by a marital agreement like a prenuptial agreement.
A prenuptial agreement may be especially suitable for a person with a child from another relationship who desires to pass on certain assets to that child upon their death. For example, with a prenuptial agreement, a married person may not be obligated to leave one-third of her estate to her spouse, but can instead leave as much of her estate as she chooses to her children.
Is a Prenuptial Agreement Right for You?
People getting married are faced with two options:
- Enter into the marriage subject to the laws that govern the marriage, however those laws may change in the future; or
- Enter into the marriage with a prenuptial agreement and choose their own rules to govern their particular relationship.
Whichever choice a marrying person makes, a qualified family law attorney can advise of the consequences and prepare a prenuptial agreement if desired. The preparation of a prenuptial agreement is critical and should only be done by an experienced lawyer.