What NY Lawyers Need To Know About Florida Prenups

With New Yorkers increasingly establishing Florida residency, understanding the nuances of Florida’s prenup laws, including what can and can’t be waived, how jurisdiction works, and how to ensure enforceability, is critical. Florida-based attorney Jodi Colton highlights five key considerations for attorneys with clients who split their time between New York and Florida, a group that’s grown significantly since the pandemic.

By: Jodi Furr Colton

Since the start of the COVID pandemic, New Yorkers have flocked to Florida en masse either as year-round residents or as part-timers aiming to meet the 183-day rule to establish primary residency for tax purposes.

Florida’s lack of state income tax, lower property taxes, and other legal benefits, such as the strong homestead protection, have been a draw for high-net-worth individuals or those anticipating earning substantial wealth in the future.

These changing demographics have increased the demand and need for New York and Florida attorneys to work together to craft prenuptial and postnuptial agreements for their multi-state clients. When both states could have jurisdiction over a future divorce, it’s important to consider whether a Florida agreement is the right choice.

Who Can Have a Florida Prenuptial Agreement?

Anyone who is currently a part-time Florida resident or who intends to relocate to Florida full-time can benefit from a Florida prenup. As with any other contract, parties to a prenuptial agreement (also known as an antenuptial or premarital agreement) may choose the state whose law will apply to their contract—this is called a “choice of law” provision.

Typically, it is the state where the parties to contract reside, but someone with multiple homes, or who plans to move, may have a few available options.

Generally, an out-of-state prenuptial agreement will be enforced by a Florida Court unless its provisions are contrary to the public policy of the state of Florida.

However, since every state’s divorce and inheritance laws differ, it may be beneficial to consider which state’s law is more favorable under the circumstances.  New York and Florida divorce laws have some significant differences.

What Can and Can’t a Florida Prenup Do?

Unlike New York, Florida has adopted the Uniform Premarital Agreement Act (UPAA), Fla. Sat. §61.079, which governs what a prenuptial agreement can include and its enforceability.

Florida law permits waiver of many of the laws and rights a party would otherwise have in divorce. A Florida prenuptial agreement can address the rights and obligations of each party in any property, including the management and control of property; the buying, selling, use, transfer and disposition of property during the marriage; and the disposition of property upon divorce or death.

Additionally, parties can agree on the establishment, modification, waiver, or elimination of spousal support (i.e. alimony). However, unlike in New York, Florida law does not allow the parties to waive prejudgment support such as temporary alimony and attorney fees incurred prior to dissolution of the marriage. Florida courts have consistently rejected attempts to do so, based on the state’s strong public policy that there is a continuing obligation of support before the marriage is dissolved.

Florida law also allows the waiver of various inheritance rights, including elective share, intestate share, homestead, exempt property, family allowance, and claims under the Florida Uniform Disposition of Community Property Rights at Death Act, Fla. Stat. § 732.702.

Although it is rarely done, parties are permitted to agree to child support provisions that are in excess of what the law would provide. However, per Florida statute §61.079, a prenuptial agreement cannot adversely affect the right of a child to support, so the parties cannot agree to a lower child support amount. A prenuptial agreement also can’t address custody or timesharing arrangements for unborn children.

Does a Florida Prenup Mean the Parties Can Only Get Divorced In Florida?

No. Jurisdiction over a divorce is determined based on where the parties reside when the divorce is filed. The court of another state can still enforce the Florida prenuptial agreement and apply Florida law to the construction and interpretation of the agreement.

If the parties are aware that New York, Florida or even another state could have jurisdiction over a divorce, it may be advisable to take each state’s law into account in drafting the prenuptial agreement, so that it meets the legal requirements of all relevant states. This helps ensure the prenuptial agreement will be fully enforceable regardless of where a divorce occurs.

How Far In Advance of the Wedding Should the Prenuptial Agreement Be Signed?

Florida law does not require a prenuptial agreement to be signed a set amount of time in advance of the marriage. However, a prenuptial agreement signed under time pressure close to the wedding date may be subject to challenge based on duress or coercion. As a practical matter, the closer to the wedding, the more on edge the bride and groom will be and the harder it becomes to negotiate. That pressure can feel heightened if the bride’s or groom’s families are involved in the negotiation.

The best practice is to sign the prenuptial agreement at least two to three months before the wedding to ensure that both parties have sufficient time to review the terms, seek legal counsel, and avoid any allegation that it was signed under duress. Ideally, the couple should begin the process at least six to eight months before the wedding to ensure both parties have sufficient time to negotiate the terms and complete their financial disclosure, which is required under Florida law.

Are There Any Drawbacks to a Florida Prenuptial Agreement?

If the parties intend to reside in Florida or believe they would be most likely to get divorced in Florida, then a Florida prenuptial agreement is the most logical choice.  However, if the parties do not intend to live in Florida after the marriage, they should consider entering into an agreement in the state where they are most likely to reside.

Out-of-state contracts will be enforced in other states, but that can add an extra layer of complexity, and there could be some provisions in the prenuptial agreement that are not enforceable under the law of the state or country where the divorce occurs. Other considerations may vary depending on the circumstances.

Reprinted with permission from the June 5th, 2025 edition of the New York Law Journal © 2024 ALM Global Properties, LLC. All rights reserved.