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Marital Agreements and Spousal Rights

Marital Agreements and Spousal Rights

Overview

In prenuptial agreements, spouses decide who owns what and what property rights each spouse will have after the other’s death. Choices made, and agreed to, in a prenuptial agreement override surviving spouse laws like the Florida constitutional homestead rules of forced inheritance laws.  Additionally, a prenuptial agreement can be used to determine which of your assets are solely yours and which are shared as marital property.

Florida protects the property rights of surviving spouses with what is called the Florida elective share. The reason for this is to protect a non-earning spouse from being left destitute at the death of the earning spouse. Without a prenuptial agreement, a spouse has the right to inherit one-third of the property from the first spouse to die. Even with a will, if you try to disinherit your spouse by leaving the survivor with little or nothing through your will, your spouse can either take what you left via the will or take the ‘elective share.’  An elective share is the minimum amount to which a spouse is entitled under State law.