Spouses as well as people who intend to get married may execute enforceable agreements between them called marriage contracts. The purposes of marriage contracts vary, but often concern property rights, estate planning, alimony and other matters.
The most common marital agreements are prenuptial or premarital agreements (prenups), postmarital agreements and marital settlement agreements (MSAs). It is important for Floridians to enter marital contracts drafted and executed in compliance with state law to prevent future issues of enforceability or validity.
Marital contracts normally should be in writing, but in narrow circumstances, a court might uphold an oral marital agreement, especially if it is read in its entirety into the court record and the spouses explicitly consent to it in court.
Premarital and postnuptial agreements
Future spouses execute a premarital agreement before the wedding, effective upon marriage. For prenups executed on or after Oct. 1, 2007, the date Florida’s Uniform Premarital Agreement Act (UPAA) took effect, a prenuptial agreement must be in writing and each party must sign. (The requirements for older prenups may be more complex.)
While there is no witness or notary requirement, these may be necessary if one of the exceptions described below applies.
A postnuptial agreement is one that spouses enter while married. Postmarital agreements are treated similarly to premarital agreements and viewed through principles of contract law.
Marital settlement agreements
An MSA is an agreement negotiated between married spouses – usually in contemplation of divorce – in which they lay out how they will resolve legal issues like property division or alimony. They normally need to be in writing, but not witnessed.
Additional requirements, related issues and exceptions
The content of a marital agreement may increase the execution requirements such as when it concerns real estate or wills. For example, if the marital agreement has a provision concerning the future writing or revocation of a will, it probably needs to be in writing and signed before two witnesses under probate law.
If a marital contract concerns the transfer of an interest in real estate (other than in a lease), Florida law requires that it be in writing with two witnesses to the signing. (Remote witnessing of electronic signatures is sometimes allowable.)
The parties may need to record in the appropriate county office a marital agreement that involves a transfer of an interest in real property. To be recordable, the agreement must either be acknowledged by the signer, signed by a witness, or notarized or otherwise officially acknowledged. Florida law also has specific requirements for form and content for any recordable document.
In addition, sometimes parties agree that one or both will waive their spousal rights in the other’s estate after death to benefits like homestead interests, spousal elective share, intestacy rights, family allowance and others. Since 2002, this type of waiver has required a signed agreement with two subscribing witnesses.
Finally, Florida courts maintain official Family Law Forms for filing in various family matters, often used by people who are unrepresented by counsel. The instructions for most require notarization or signing before a deputy clerk. During the current public health emergency, for most of these forms (but not all) the Florida Supreme Court has suspended this requirement at least as of this March 2021 writing.
The bottom line
Because of these complexities, parties may want to err on the side of caution and be as formal as possible with marital contract execution – that is, put them in writing and sign in the presence of witnesses as well as before a notary or other person authorized to authenticate signatures. An attorney’s advice on these matters can be invaluable, both before execution of an agreement and after if related questions arise.