Does a Florida Prenup Protect Stock Options, RSUs and Startup Equity?

How Florida Divides Options and RSUs With No Prenup

Florida law classifies assets acquired during the marriage as marital property. Stock options and RSUs granted before the wedding but vesting after it sit in both categories at once. The grant came before, but the right to exercise arrived during.

The statute defines nonmarital assets as those acquired before the marriage and assets acquired in exchange for them. A grant you received before the wedding is nonmarital in one sense. Florida law also says that vested and nonvested benefits, rights and funds accrued during the marriage in deferred compensation plans are marital assets. A grant dated before the wedding that vests during the marriage is where the argument lives.

No Florida appellate decision that I have found addresses restricted stock units by name. The statute’s language about deferred compensation is the closest text, and it points toward treating vesting during the marriage as a marital event. A prenup settles the question so no court has to decide it.

An appeals court case offers a drafting lesson. The clause at issue said no claim to separate property “if it increases in value during the marriage.” The court read that as passive appreciation only, so active improvement stayed divisible. The lesson is that a clause must say what it means about both passive and active growth.

Grants Before the Wedding That Vest During the Marriage

A grant dated six months before the wedding that vests over four years creates a problem. The first tranche vests before you marry. The last tranche vests three and a half years into the marriage. Each tranche arrives on its own date.

Florida law says nonmarital assets include those acquired before the marriage and assets acquired in exchange for them. The grant itself is acquired before, but the shares you receive at each vesting event may be treated as benefits accrued during the marriage. The two readings point in different directions, and no appellate decision has settled the question for RSUs.

A prenup can say that every option, RSU or other equity grant dated before the wedding remains nonmarital property regardless of when it vests. The agreement can also say that unvested grants are valued as of the wedding date for purposes of equitable distribution. The agreement can do both.

The alternative is litigation. Appraisers will reconstruct the grant date, the vesting schedule, the share price on each relevant date, and the portion tied to work done before and after the wedding. A prenup drafted for one spouse costs a flat fee from $2,450. A valuation fight over RSUs in a divorce can run into six figures.

Startup Equity, Founders and the Company Itself

A founder’s equity is different from an employee’s RSU grant. Founders often hold common stock or options with no vesting schedule at all, or a schedule that started years before any wedding. The company itself is the asset, and the company’s value changes every time revenue grows, a round closes or an exit appears.

Florida law says that assets excluded from marital assets by valid written agreement of the parties remain nonmarital. The same statute covers assets acquired in exchange for those excluded assets. A prenup can say the company, every share of the company, and every asset acquired in exchange for those shares is separate property.

The Florida Supreme Court held that a broad release of rights to property “now owned or hereafter acquired” in the other spouse’s name covers assets titled in that spouse’s name and their enhancement from marital labor or funds. No separate enhancement clause is needed when the release is broad enough. That holding supports a clause that keeps founder shares and their growth separate.

Without a prenup, your spouse may argue that the company’s growth during the marriage is marital because it came from work you did while married. The statute makes income derived from nonmarital assets marital only if it was treated, used or relied upon by the parties as a marital asset. A separate bank account and clear recordkeeping help, but a written agreement is cleaner.

What the Prenup Should Say About Equity

The agreement should list every grant you hold as of the signing date. Each grant should have its own line showing the number of shares or units, the grant date, the vesting schedule and the current fair market value. The valuation can be the most recent 409A valuation, the public share price on a stated date, or a formula if the company is private and early.

The agreement should also cover future grants. Florida law allows parties to contract with respect to the rights and obligations in any of the property of either or both of them whenever and wherever acquired. A clause that says “all equity compensation granted to either party during the marriage in respect of services performed before or during the marriage shall remain the separate property of the recipient” reaches grants that do not exist yet.

The agreement should include a section on deferred compensation and equity awards that names stock options, restricted stock units, phantom stock, profits interests and similar instruments. The section should say that these awards and any shares acquired upon exercise or vesting remain the separate property of the party to whom they were granted.

The agreement should also address appreciation. A clause should say that the increase in value of separate property during the marriage, whether from market forces or the owner’s efforts, remains separate. That language tracks the Florida Supreme Court’s holding that a broad release covers enhancement from marital labor.

The Valuation Fight the Agreement Avoids

A divorce without a prenup over equity compensation usually starts with a subpoena to the company’s stock plan administrator. The administrator produces the grant date, the number of shares, the vesting schedule and the exercise price or purchase price. That is the easy part.

The hard part is valuing unvested grants. Public company RSUs are worth the share price times the number of units, minus some discount for risk of forfeiture. Private company equity has no public price, so the parties fight over what the shares are worth. A 409A valuation is one data point. The most recent financing round is another. A court may order an independent appraisal.

The prenup can avoid the fight by saying that unvested grants remain the recipient’s separate property. The court never reaches the question of what they are worth because the court has no equitable distribution decision to make. One line in the agreement removes an appraiser, a deposition and a motion hearing from the divorce.

The Death Side: Beneficiary Forms and the Waiver

A prenup is a divorce document and also an estate document. Florida law allows a prenup to waive spousal rights at death, including the elective share, homestead and family allowance. If one spouse dies, the survivor cannot claim 30 percent of the estate if the survivor waived that right in a valid agreement.

A prenup that waives death rights must be signed by the waiving spouse in the presence of two subscribing witnesses. A notary alone is a witness short. The firm’s signing process uses Florida online notarization with two witnesses and a notary on video.

Beneficiary designations on equity accounts pass outside the estate. If you name your brother as beneficiary of your brokerage account, your spouse does not receive those shares at your death even if you die without a prenup. The prenup should say which beneficiary designations each party will make, and the party should make them.

Disclosing Unvested Grants

Florida’s prenup statute makes an agreement unenforceable if the party against whom enforcement is sought was not provided a fair and reasonable disclosure of the other party’s property or financial obligations. Unvested grants are property under the statute, which defines property to include an interest present or future, vested or contingent.

The firm’s financial disclosure schedule asks for every grant you hold, vested or unvested. It asks for the grant date, the vesting schedule, the number of shares or units and the current value. For unvested grants the value is an estimate, and the schedule says so.

A spouse who signs without disclosing unvested grants takes a risk. The other spouse can argue later that the agreement is unenforceable because disclosure was incomplete. The safe approach is to list everything and note that unvested grants may never vest.

What It Costs

The firm drafts a prenuptial agreement for one spouse for a flat fee from $2,450. The fee covers the first draft, up to two rounds of revisions with the other spouse’s lawyer, the financial disclosure schedules and the signing with two witnesses and a notary from home.

Reviewing a prenup the other side drafted costs a flat fee from $750. A postnuptial agreement costs a flat fee from $2,950. Litigation over an existing agreement is quoted per matter.

The free 30-minute consultation by phone, Zoom or WhatsApp is where we figure out which service fits. The firm represents one spouse only, so the other side chooses their own lawyer.

Frequently Asked Questions

Common Situations

A software engineer at a public company held RSUs worth about $400,000 unvested. The wedding was eight months away. The RSUs would vest 25 percent each year for four years, and most of the vesting would happen during the marriage. The engineer wanted the RSUs to stay separate. The firm drafted a prenup saying all equity compensation granted before or during the marriage remains the recipient’s separate property. The other spouse had her own lawyer review it. Both signed six weeks before the wedding. The flat fee was $2,450.

A startup founder held 40 percent of a company that had closed a Series A round at a $12 million valuation. The founder was getting married and worried about what would happen to those shares if the marriage ended. The firm drafted a prenup that listed the founder shares as separate property and said all appreciation during the marriage, from market forces or the founder’s work, would remain separate. The agreement also covered future grants from any company. The other spouse’s lawyer requested one revision about a joint savings account. The flat fee was $2,450.

Sources of Law

• Equitable distribution, subsection (6)(a) on assets, enhancement and vested and nonvested benefits: Fla. Stat. §61.075
• Premarital agreements: Fla. Stat. §61.079
• Waiver of spousal rights: Fla. Stat. §732.702
• Hahamovitch v. Hahamovitch, 174 So. 3d 983 (Fla. 2015); Doig v. Doig, 787 So. 2d 100 (Fla. 2d DCA 2001); Gordon v. Gordon, 25 So. 3d 615 (Fla. 4th DCA 2009). Opinions in the firm’s corpus.

Related Guides

What I Have Seen Unvested Equity Do in a Divorce

In 14 years of law practice, I have seen unvested equity become the most contested asset in a divorce, more than the house or the retirement accounts. I have a few take-home points.

The first is that Florida law draws a line through every grant tied to your work during the marriage. An appeals court held that a clause about separate property increasing in value during the marriage addressed passive appreciation only, so active improvement stayed divisible. The same reasoning applies to stock that grew because you showed up and did your job. A prenup can move that line by saying the grant and all appreciation remain separate.

The second is that disclosure decides whether the agreement survives. Florida’s statute requires fair and reasonable disclosure of property, and property includes an interest present or future, vested or contingent. Unvested grants count. I ask clients to list every grant they hold, vested or unvested, with the grant date, vesting schedule and current value. An estimate is fine for unvested grants, and the schedule says so.

The third is that the signing matters as much as the drafting. Florida courts have voided a prenup signed within 24 hours of the wedding and set aside one whose final draft arrived at 11:30 p.m. the night before. The firm’s rule is six months to start, one month to sign, never inside two weeks. Both sides need time to read, think and talk to their own lawyers.

Avoid waiting until the company announces a new grant or the wedding is three weeks away. The right time to start is when the engagement is new and nobody is feeling rushed.

One honest limit is that no Florida appellate decision that I have found addresses restricted stock units by name, so the agreement is drafted to make the question clear enough that it never reaches a court.

Kevin D. Klagge, Esq., admitted in Florida since 2012. General information rather than advice on your situation.

Updated on October 30, 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.