With some exception, when a couple executed a valid prenuptial or premarital agreement in another state and one of them wants to enforce it in Florida, usually in a divorce proceeding or after one of them has died, the agreement will be enforceable. This is a significant principle, given that a spouse may have given up significant property rights in the prenup.
Divorce
An example of the kind of situation that can arise is when a spouse waived the right to alimony or to certain property in a prenuptial agreement executed in another state and is fighting the enforcement of this waiver in divorce proceedings in a Florida court.
Generally, a Florida court will enforce a premarital agreement in a divorce when the spouses entered into it in another state in the way the court would enforce any valid contract executed in another jurisdiction. However, the prenuptial agreement must have been valid under the law of the state of execution and its content may not be contrary to the public policy of Florida.
One Florida court defined a contract as void because it is against public policy as “injurious to the interest of the public, or contraven[ing] some established interest in society.”
Florida courts have said that just because a prenup is unfair to one spouse, if it meets the requirements of the law of the state of execution, it may still be enforceable in Florida. Most states have requirements for prenuptial agreements like full disclosure of assets, no duress or fraud, free and voluntary signing, and other similar provisions related to fairness.
Probate
In a prenuptial agreement, a future spouse may waive his or her right to marital property that can arise during probate of the other spouse’s estate after death like a spouse’s elective share, intestate share, interest in homesteaded property and others.
Florida statute provides that if the parties executed the waiver in another state or country, if it was valid where it was executed at the time of execution, a Florida court may enforce it.
Issues related to enforcement of out-of-state premarital agreements in Florida can be quite complicated. It is advisable to consult an experienced Florida family lawyer.
