1. Does a Prenup Apply to Death?
Clients who signed a prenup with a divorce in mind are often confused about this, and ask me, “Does any of it still matter if one of us dies?” The answer is yes. Florida’s premarital act lets a couple decide the disposition of property at death, the making of a will or trust to carry out the agreement, and who receives a life insurance death benefit. The agreement takes effect on the wedding day and stays in force until both spouses sign a written amendment or revocation. A death does not end it.
The probate code says the same thing from the other direction. A spouse can waive the rights a widow or widower would otherwise have, before or after the marriage, by a written agreement. For an agreement signed in Florida by Florida residents, the waiving spouse has to sign in front of two subscribing witnesses. A prenup with two signatures and no witnesses can work perfectly in a divorce and fail at the one moment it was meant for.
Disclosure works the opposite way from what most people expect. Florida requires no financial disclosure for a waiver signed before the marriage and requires fair disclosure from each spouse for one signed after it. Prenup versus postnup explains why.
2. The Rights at Death a Prenup Can Waive
Florida names each right a surviving spouse holds, and a prenup can waive any of them, wholly or partly.
- The elective share. 30 percent of the elective estate, which counts the probate estate, the homestead, revocable trust assets, joint and payable-on-death accounts and more. On a $900,000 estate that is $270,000, whatever the will says. See the Florida elective share.
- The intestate share. If you die without a will, a spouse takes the whole estate or half of it, depending on whether either of you has children from another relationship. See who inherits without a will.
- The pretermitted share. If you marry after signing your will and the will does not provide for your new spouse, the spouse takes an intestate share unless a prenup or postnup provided for or waived it. See pretermitted spouses and children.
- Homestead. A life estate in the home, or an undivided half interest if the spouse elects it, when you leave descendants. Section 5 covers the house.
- Exempt property. Household furniture and appliances up to $20,000 and two vehicles.
- The family allowance. Up to $18,000 for support while the estate is administered.
- A community-property claim and the right to serve as personal representative of an intestate estate.
A waiver of one right is not automatically a waiver of the others unless the agreement uses broad language, which is the subject of the next section.
3. Does a Prenup Have to Mention Death?
No. Florida provides that unless the waiver says otherwise, a waiver of all rights, or equivalent language, in the property or estate of a spouse waives every spousal right at death on that list. The agreement does not have to say elective share, homestead or death.
The rule cuts both ways. A short agreement in which each person keeps their own property free of any claim by the other can waive everything at death, even if the couple only had divorce in mind. A long agreement that carefully waives equitable distribution and alimony on separation or divorce, and stops there, may waive nothing at death. The experience note at the bottom of this page tells the story of a one-page agreement that never used the word death and still did.
4. What Takes Precedence, a Will or a Prenuptial Agreement?
The prenup controls the spousal claims. The will, trust and beneficiary designations control where the property goes. A waiver stops the survivor from overriding the plan, and a waiver alone moves nothing to anyone, so the plan has to exist in documents that actually transfer property.
Three rules decide how the two documents fit together.
- A broad waiver cancels gifts in an older will. A waiver of all rights renounces every benefit that would pass to the waiving spouse under any will signed before the agreement. If you want your spouse to receive something, sign the will after the prenup.
- A promise to leave something by will needs two attesting witnesses. Florida enforces an agreement to make a will or a gift only if it is in writing and signed in the presence of two attesting witnesses. A prenup that promises the survivor $250,000 or the right to live in the house needs that formality and a will or trust that delivers it.
- Beneficiary forms follow their own paperwork. A prenup can govern a life insurance death benefit, and the insurer still pays the person named on the form. The forms have to match the agreement.
A will-based or trust-based plan signed together with the prenup is how the agreement gets carried out. See whether a prenup replaces a will for what the will has to say, prenups and retirement accounts for the 401(k) consent a prenup cannot give, and second-marriage prenups, where this coordination matters most.
Have a prenup and a will that were never read together?
Bring both to a free consultation. We will tell you which rights the agreement waived and whether the will finishes the job.
Book a free consultation5. What Happens to the House
A Florida home is treated differently from everything else you own. When the owner is survived by a spouse or a minor child, the Florida Constitution stops the owner from leaving the homestead by will to anyone except the spouse, and only where no minor child survives. If the home passes by those rules, a surviving spouse takes a life estate, or elects an undivided half interest, and the descendants take the rest.
A valid spousal waiver changes that. The Florida Supreme Court held in 1991 that a spouse’s waiver of homestead rights in an antenuptial agreement is treated as if the spouse died first, so an owner with no minor children can leave the home to anyone. The 1991 ruling is what lets a remarried parent leave the house to the children from a first marriage.
A waiver cannot help where a minor child survives, because the constitution protects the minor child separately. A spouse can also waive the homestead devise restriction in a deed using Florida’s statutory language, which is useful when there is no prenup. See the spousal waiver of homestead and what a surviving spouse gets in the house.
6. Do You Need a Prenup to Protect an Inheritance?
An inheritance is protected in a Florida divorce and exposed at death, and couples rarely hear the second half.
In a divorce, assets acquired by inheritance are nonmarital, along with the income they produce unless that income was treated or used as marital money. The protection is lost in practice when inherited money goes into a joint account, pays down a marital mortgage, or is retitled in both names.
At death, the inheritance is simply part of your estate. Your surviving spouse can claim 30 percent of nearly everything you own through the elective share, the inheritance included, unless that right was waived. If your parents left you $600,000 and you want it to reach your own children, the elective share alone can move $180,000 of it to your spouse. A prenup, or a postnup if you are already married, is the document that prevents that. See protecting a child’s inheritance, prenups for trust beneficiaries and a parents’ guide to a child’s prenup.
7. What Happens to the Elective Share After a Prenup Is Revoked?
A revocation of a prenup restores the surviving spouse's rights at death, including the right to thirty percent of the elective estate under Florida law. Restoration of the right does not remove the deadline for claiming it. The surviving spouse must still file an election within six months after service of the notice of administration and within two years of the death, with any extension petition filed before the time runs.
A filed waiver of service of the notice of administration counts as service on the day the waiver is filed. A spouse who signs such a waiver and returns it to the estate's lawyers may never see a separate notice, yet the clock is already running.
A pending Miami-Dade lawsuit shows the sequence. According to the complaint, a couple signed a prenup in 2018 that waived the wife's elective share. In 2020 they signed a revocation intended to undo the waiver. The husband died in September 2021. The widow signed a waiver of service of the notice of administration on October 12, 2021, and her lawyer emailed it to the estate that evening. The waiver was filed October 13, 2021. The six-month deadline expired April 13, 2022. The widow filed her election on August 31, 2023, more than sixteen months late. The probate court struck the election as untimely on August 12, 2026. The court did not decide whether the revocation was valid. The firm's case story on the lost election describes the dispute in detail.
What It Costs
A prenup drafted for one spouse is a flat fee from $2,450, a postnup drafted for one spouse is a flat fee from $2,950, and a review of an agreement the other side drafted is a flat fee from $750. What each fee includes is set out on the prenup page.
The documents that carry the agreement out are posted. The will-based plan is flat fee from $1,200 for one person and $1,950 for a couple, and the trust-based plan is flat fee from $3,200 for one person and $4,500 for a couple. Posted fees are honored for at least 90 days from September 2026. Government costs such as recording and filing fees are additional and passed through at cost.
Frequently Asked Questions
Does a Prenup Apply to Death?
Yes, when the agreement reaches it. Florida lets a prenup decide what happens to property at death and lets either spouse waive the rights a widow or widower would otherwise have, including the 30 percent elective share, the intestate share, homestead, exempt property and the family allowance. Many agreements written with only divorce in mind still reach death, because Florida treats a waiver of all rights in the other spouse’s property as a waiver of every one of those rights unless the agreement says otherwise.
Is a Prenup Valid After Death?
Yes, it is. A prenup takes effect at the wedding and stays in force until both spouses sign a written amendment or revocation, and the death of one spouse does not end it. The surviving spouse is bound by any waiver that was properly signed, which for an agreement signed in Florida by Florida residents means the waiving spouse signed in front of two subscribing witnesses.
What Happens to a Prenup if a Spouse Dies?
The agreement is read by the probate court instead of a divorce court. If the survivor waived the elective share, homestead and the other spousal rights, the estate passes under the will or trust as if those claims did not exist. Any promise the agreement made to the survivor, such as a sum of money or the right to live in the house, becomes something the estate has to deliver.
Does a Prenuptial Agreement Survive Death?
Yes, it does. Nothing in Florida law ends a premarital agreement at the death of a spouse, and the statute expressly lets the agreement govern the disposition of property at death. The survivor can still attack it after the death on grounds such as coercion or lack of capacity at signing, but a lack of financial disclosure is not one of them for an agreement signed before the wedding.
What Takes Precedence, a Will or a Prenuptial Agreement?
The prenup controls the spousal claims and the will controls everything else. A valid waiver stops the survivor from claiming the elective share or homestead against the will, and a will cannot take back a promise the agreement made to the survivor. Two traps sit between them. A broad waiver renounces gifts to the spouse in any will signed before the agreement, and a promise to leave something by will has to be signed in front of two attesting witnesses to be enforceable.
Do You Need a Prenup to Protect an Inheritance?
In a divorce, an inheritance starts out as your separate property under Florida law, though it can lose that status if it is mixed with marital money or retitled jointly. At death it is different. An inheritance you hold when you die is part of your estate, and your surviving spouse can claim 30 percent of nearly everything you own through the elective share unless that right was waived. A prenup or postnup is how you keep a family inheritance for your own children.
Does a Prenup Include Death?
Only if its words reach it, and in Florida broad words do. An agreement that says each spouse gives up any claim to the other’s property is treated as a waiver of the death rights too, even if death is never mentioned. An agreement whose waivers are tied to separation or divorce may reach nothing at death. Reading the clause is the only way to know.
What Happens if You Die With a Prenup?
Your estate passes under your will, trust and beneficiary designations, and your spouse takes what the agreement and those documents give, without the claims the agreement waived. If your will was signed before the prenup and leaves your spouse something, a broad waiver can cancel that gift, so a new will signed after the agreement is the usual answer.
Do I Need a Prenup to Protect My House?
If you want your Florida home to go to someone other than your spouse, usually yes. A surviving spouse is protected by the homestead rules, which stop you from leaving the home away from your spouse by will. A valid waiver in a prenup or postnup lets you leave the home to your children instead, provided no minor child survives you. A deed signed by your spouse with Florida’s statutory waiver language is a second route for the home alone.
Does revoking a prenup automatically restore the elective share?
Revoking a prenup restores the surviving spouse's right to the elective share, but the spouse must still claim it. Florida law requires the election to be filed within six months after service of the notice of administration and within two years of the death. A pending Miami-Dade case illustrates the risk. According to the complaint, a widow's prenup was revoked but her election was struck as untimely because the six-month deadline had passed.
Common Situations
The second marriage with grown children on both sides. A widower with two adult daughters marries a widow with a son. Each wants their own children to inherit. Two wills cannot do that alone, because each survivor could still claim 30 percent of the other’s estate. Mutual waivers in a prenup, signed before two witnesses, and new wills signed after it are what make the plan hold.
The will that predated the prenup. A husband signed a will leaving his wife a condominium, then signed a prenup in which each waived all rights in the other’s property. Florida treats that waiver as renouncing gifts in any will signed before the agreement. The wife the husband meant to provide for may receive nothing until a new will repeats the gift.
The divorce-only agreement. A couple’s prenup waives alimony and equitable distribution in the event of divorce and says nothing else. One spouse dies after 20 years of marriage. The survivor’s elective share and homestead rights are likely intact, because nothing in the agreement reaches all rights or death.
Sources of Law
- Fla. Stat. §732.702(1) (elective share, intestate share, pretermitted share, homestead, exempt property, family allowance, community-property claims under §§732.216 to 732.228 and preference in appointment as personal representative may be waived before or after marriage by a written agreement signed by the waiving party in the presence of two subscribing witnesses, the witness requirement applying to instruments signed by Florida residents; unless the waiver provides to the contrary, a waiver of “all rights,” or equivalent language, waives all of those rights and renounces benefits under any will executed before the waiver); §732.702(2) (disclosure required after marriage only); §732.702(3).
- Fla. Stat. §732.701(1) (agreement to make a will or devise binding only if in writing and signed in the presence of two attesting witnesses); §732.301 (pretermitted spouse, unless provided for or waived by prenuptial or postnuptial agreement); §732.102 (spouse’s intestate share); §732.401 (descent of homestead; life estate or elective one-half tenancy in common); §732.402 (exempt property, furniture up to $20,000 and two motor vehicles); §732.403 (family allowance not exceeding $18,000); §732.2035 and §732.2065 (elective estate; 30 percent); §732.7025 (waiver of homestead rights through deed). Fla. Const. art. X, §4(c).
- Fla. Stat. §61.079(4)(a)3., 5. and 6. (premarital agreement may govern disposition of property at death, the making of a will or trust to carry out the agreement, and a life insurance death benefit); §61.079(5) and (6). Fla. Stat. §61.075(6)(b)2. and 3. (inheritances and their income nonmarital).
- Taylor v. Taylor, 1 So. 3d 348 (Fla. 1st DCA 2009) (prenuptial agreement providing that each spouse’s property would “forever remain” that spouse’s personal estate and remain “forever free of claim by the other” held, under §732.702(1), to waive the elective share, intestate share, family allowance and other spousal rights though it never mentioned death; parol evidence improperly admitted). Opinion read in full.
- City National Bank of Florida v. Tescher, 578 So. 2d 701 (Fla. 1991) (antenuptial waiver of homestead rights is the legal equivalent of predeceasing for art. X, §4(c) where no minor child survives). Weisfeld-Ladd v. Estate of Ladd, 920 So. 2d 1148 (Fla. 3d DCA 2006) (equivalent-language waiver of the elective share).
- Statutes and opinions retrieved October 2, 2026.
A One-Page Agreement That Reached Further Than Anyone Thought
I draft for the version of this document that gets read out loud in a courtroom, and in a prenup case that reading usually happens after one of the two people who signed it has died.
Cases with this shape keep coming up, and the one I return to most started the day before a wedding in June 1996. The couple signed a prenup of five short paragraphs. The agreement said their reason for signing was that they loved each other and did not want their finances changed by the marriage, and it said each person’s property would “forever remain” their personal estate and stay “forever free of claim by the other.” The two paragraphs that mentioned an ending both spoke of separation or divorce. Nothing in it mentioned death.
When the husband died, his widow asked to share in his estate as his surviving spouse. The trial judge read the agreement as silent about death, listened to her testify that she never meant to give up her rights as a widow, and ruled for her. In 2009 the appellate court reversed. The words about each person’s property staying free of any claim were the equivalent of waiving all rights, and Florida treats that as a waiver of the elective share, the intestate share, the family allowance and the rest. Her testimony should never have been heard, because the words were clear.
I have a few take-home points.
The first is that the couple almost certainly believed they had signed a divorce document. The paragraphs about separation and divorce told them so, and the sentence that decided the case read like a statement of who owned what.
The second is that her own account of what she intended counted for nothing. Once a court finds the words unambiguous, the person who signed them does not get to explain them.
Practice pointer. Decide on purpose what happens at death and write it into the agreement by name, listing the elective share, homestead, exempt property, the family allowance and the intestate and pretermitted shares. If the survivor is meant to keep any of them, say so expressly, because the default reading of broad language is that everything was given up.
Avoid leaving an older will in place after signing a prenup. A broad waiver renounces gifts to the spouse in any will signed before it.
An honest limit belongs here. Whether a particular clause amounts to equivalent language is decided case by case, and two agreements that read alike across a desk can be construed differently. The answer for any agreement comes from reading that agreement.
Kevin D. Klagge, Esq., admitted in Florida since 2012. The case above is a published opinion in other parties’ matter, not a matter this firm handled, and it predicts nothing about yours.
Updated on November 12, 2026. Reviewed by Kevin D. Klagge, Esq., Fla. Bar No. 99502. General information about Florida law, not legal advice, and no attorney-client relationship is created. Do not send confidential information until we have agreed to represent you.
More Guides on Florida Prenuptial Agreements
- What Happens If You Don’t Sign a Prenup?
- Is a Prenup Worth It?
- Your Will and Beneficiaries After a Divorce in Florida
- Is an Inheritance Marital Property in Florida?
- How to Protect Your Assets in a Divorce in Florida
- Prenup Review by a Florida Attorney Before You Sign
- Do You Need a Prenup for a K-1 Fiancé Visa Marriage in Florida?
- Prenup for Foreign Nationals and E-2 Investors in Florida
Try the Which Estate Plan Do I Need? (quiz).
