Prenuptial and Postnuptial Agreements

Prenuptial and Postnuptial Agreements in Trust and Probate Matters

A prenuptial or postnuptial agreement is a written contract entered into by engaged or married couples that governs specific matters related to the couple’s financial and other arrangements, effective upon their marriage. This kind of agreement can have varied and complex implications from an estate and trust standpoint. Board Certified Fort Lauderdale trust and estate litigation attorney Mark R. Manceri can help you enforce or challenge such agreements in a dispute related to probate or trust matters.

Prenuptial and Postnuptial Agreements

In today’s world, more and more couples are choosing to enter into prenuptial and postnuptial agreements for the purpose of delineating the ownership, management, or disposition of their assets in the event of marital dissolution. Typically, prenuptial and postnuptial agreements will:

  • Define separate ownership of particular properties;
  • Determine who is financially responsible for certain debts, for asset management, or for specific expenses;
  • Allocate risks or responsibilities with regard to the assets, income, or earnings of the couple; or
  • Provide for the distribution or settlement of property and income in the event of divorce or death.

These agreements can also touch on more personal subjects, such as which spouse will take care of certain household responsibilities, prohibited conduct (for example, adultery, or drug or alcohol abuse), or other such matters.

Although there are no official tallies of how many such agreements are in place, it is estimated that roughly 3% of couples have executed them. And while they are often viewed as unromantic, they can prove to be very prudent, since divorce rates are currently at about 50% of all marriages. With individuals marrying later in life, and second and third marriages being fairly common, prospective spouses often will already have accumulated a significant amount of personal assets prior to a marriage, or they may have children from a previous marriage. Confronting these realities, wealthy individuals in particular frequently opt to clearly spell out their expectations and intentions as to how they want their property distributed upon their death, and to obtain their spouse’s consent to these terms prior to entering into marriage.

Prenuptial and Postnuptial Agreements Under Florida Law

Although prenuptial and postnuptial agreements were once viewed skeptically, Florida courts now readily enforce them. When it comes to probate matters, Florida Statute Section 732.702 specifically provides that the rights of a surviving spouse to a share of an estate or to other benefits by operation of law (such as by the law of intestate succession, or by a pre-existing will) “may be waived, wholly or partly, before or after marriage, by a written contract, agreement, or waiver, signed by the waiving party in the presence of two subscribing witnesses.” The law also specifies that:

  • Florida will enforce agreements validly made in the state or country where executed;
  • For postnuptial agreements, spouses must make a full and fair disclosure of their estates, though the same is not necessary for prenuptial agreements; and
  • Marriage itself is sufficient consideration (an exchange of benefits) to validate the agreement.
Fort Lauderdale Wills, Trusts, and Estates Attorney Mark R. Manceri Can Assist You in Disputes Involving Prenuptial and Postnuptial Agreements

Naturally, once signed, these agreements rarely present problems until they must be enforced, and one of the parties decides that he or she is not content to abide by the terms. Common challenges to prenuptial and postnuptial agreements in the context of trust and probate matters include:

  • The agreement was not entered into voluntarily (that is, it was procured by fraud, duress, coercion, or overreaching);
  • The agreement was not executed legally;
  • The agreement is void as its terms contravene public policy (for example, it requires one of the parties to violate the law).

In addition, litigation over prenuptial and postnuptial agreements frequently arises simply to establish the meaning of the agreement as it applies to specific property or circumstances. As in all such matters, the language may appear vague, and contesting parties will strongly contend that their interpretation is the proper one. The deciding factor in these cases will be the court’s determination of the parties’ intent as expressed in the agreement.

If you are dealing with a trust or probate matter involving a dispute over the meaning or validity of prenuptial or postnuptial agreement, Florida wills, trusts, and estates lawyer Mark R. Manceri can assist you. He has nearly 30 years of experience handling both transactional and litigation matters and is Board Certified, the Florida Bar’s recognition of Mr. Manceri as one of an elite group of Florida attorneys who have achieved specialized knowledge, skill, and proficiency in their field of practice.

To schedule a consultation, contact Mark Manceri in Fort Lauderdale at (954) 491-7099, or use the form on this website.

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