• Mark Moss

Using a Postnuptial Agreement to Plan Around Florida’s Homestead Laws

In a recent article, we discussed some of the estate planning implications of Florida’s homestead laws, and we noted that creating a postnuptial agreement may be a great option for many spouses who are seeking to plan around these laws’ requirements. If you own homestead property, by law, your property will transfer to your spouse and minor children (if any) at the time of your death, and your spouse will have the option to elect to either claim a life estate in the property or share undivided ownership with your minor children. While these options for work for some people, for many others they do not.

Since will provisions that are inconsistent with Florida’s homestead laws are unenforceable, distributing homestead property in a manner that is inconsistent with these laws requires a different approach. In most situations, this will involve entering into a postnuptial agreement.

What is a Postnuptial Agreement?

A postnuptial agreement is a contract between spouses. When signed by both spouses, a postnuptial agreement becomes legally binding, and both spouses are subject to its terms. While there are limits to the enforceability of postnuptial agreements (i.e. an agreement will not be enforced if one spouse signed under coercion or duress), in the estate planning context, it will typically be in both spouses’ best interests to enter into a carefully-tailored and forward-thinking agreement.

Why Should You Incorporate a Postnuptial Agreement into Your Estate Plan?

There are a number of ways that postnuptial agreements (and prenuptial agreements) can be utilized for estate planning purposes. “Prenups” and “postnups” can serve some of the same purposes as other estate planning tools, and they offer some unique planning options as well. In particular, the fact that they are legally-binding contracts rather than unilaterally-created documents means that they can be used to subvert the requirements of Florida’s homestead laws.

What is Involved in Creating a Postnuptial Agreement?

Creating a postnuptial agreement as part of your estate plan is a fairly straightforward process. Although the common perception of prenups and postnups is that they are tools for divorce planning, the reality is that they can serve many non-divorce-related purposes. In fact, the topic of divorce does not even need to come up when you are preparing your life plan. You and your spouse can focus on the specific issues you want to address (i.e. avoiding the application of Florida’s homestead laws), and you can sign a mutually-beneficial agreement that works in tandem with your other estate planning documents.

While postnuptial agreements are legally-binding contracts, like other estate planning tools, they can also be modified (or voided) if circumstances change. If you do not want Florida’s homestead laws to apply to your property, you will want to discuss the prospect of using a prenup with your estate planning attorney.

Discuss Your Options in Confidence

Do you have questions about Florida’s homestead laws and what you can do to ensure that your property will be distributed as you intend? To discuss your options in confidence, call 904-329-7242 or request an initial consultation online today.


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