How Detailed Does your Prenup Have to Be?

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Agreements on Friday, September 11, 2015.

The Florida Supreme Court just decided a case which settles a conflict among Florida courts over interpreting prenuptial agreements. It also settles just how detailed your agreement has to be.

I’ve written about the issue of protecting your non-marital assets through a prenuptial agreement before. Few people know that there’s been a big conflict in Florida over how detailed a waiver of rights in a prenup has to be.

For example, if your prenup says that no one will ever claim any interest in the other spouse’s property, is your future spouse entitled to any share of your assets, or the appreciated value in your assets if they were acquired during, or increased in value, during the marriage? You’d think not.

A Prenup in Miami is Different than a Prenup in Ft. Lauderdale?

Believe it or not, that was a huge controversy in Florida. Courts in Miami said yes, your future spouse could claim a share of your non-marital assets even with a general waiver.

But other courts, such as ones in Ft. Lauderdale for instance, came to the opposite conclusion: No, your spouse couldn’t claim an interest in your share of assets if there was a general release to non-marital properties.

Before thinking about the prenup issue, consider the bigger problem of different Florida courts interpreting contracts differently.

Your prenup – which specifically says that neither spouse will ever claim any interest in the other’s property – may not be enforced depending on where you live.

A not-well known job of supreme courts is to settle conflicts between lower appellate courts in a state or the country. For example, in the recent gay marriage case, the U.S. Supreme Court settled the gay marriage conflict between different federal appellate courts.

Prenuptial Agreements Now Treated (more) Uniformly in Florida

Similarly, the Florida Supreme Court settled the conflict between Florida counties about prenuptial agreements.

Yesterday, the high court held that if a prenup includes a broad wavier provision – “but does not specifically waive a spouse’s claim to the other spouse’s earnings, assets acquired with those earnings, and the enhanced value of the other spouse’s property resulting from marital labor or funds” – the general waiver may be sufficient to waive a spouse’s right to seek equitable distribution of such assets.

The Florida Supreme Court opinion is available here.