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Is a Post-Marital Agreement Right for You?


Many people entering their second or third marriages do not view a pre-marital or post-marital agreement as a necessary part of an estate plan. Yet, those with blended families must understand how divorce and death will impact their children.

If you have already taken a trip down the aisle, it is too late for a pre-marital agreement. But a post-marital agreement might be exactly what you need. Contact one of our estate planning attorneys in The Villages for more information.

Florida’s Elective Share Law

Our clients are often concerned about providing for their children from a previous marriage. This is where a post-marital agreement can be a big help.

Florida has something called an “elective share” law, which can be found at Fla. Stat. § 732.201. This law states that the surviving spouse can claim 30% of their spouse’s elective estate. The elective estate includes assets that are probated, along with certain non-probated assets, such as Transfer on Death accounts, revocable trusts, and certain interests in property. The elective share law applies regardless of what you state in your will.

So someone who wants to ensure that their children inherit most or all of their assets needs to work around the elective share law. If they don’t, fewer assets could be available for their children to inherit. Fortunately, Florida law allows people to waive their right to an elective share.

Post-Marital Agreement: When You Sign & What It Does

A pre-marital agreement is signed before marriage. But Florida also allows couples to sign agreements after exchanging wedding vows. This post-marital agreement is a lot like a pre-marital agreement but is signed after the nuptials.

In addition to deciding how assets are distributed after death, a post-marital agreement can deal with the division of property and other financial matters after divorce:

  • A couple can identify what will count as marital property and what will remain separate
  • A couple can set an amount of property that one spouse will receive if they divorce
  • A spouse can waive his or her right to alimony
  • If the couple has children, a spouse can agree whether to support the child through college

Our clients can accomplish a lot using a post-marital agreement. They still cannot set child support or decide child custody, but many important legal decisions can be made in this document.

Key Considerations

Whether a post-marital agreement is right for you is an individualized decision. Raising this issue can cause friction in a marriage, since your spouse might see it as a signal that the marriage is in trouble. And your spouse has no incentive to sign if he or she does not want to.

A post-marital agreement might be appropriate for blended families that are finally sitting down and crafting a coherent estate plan. Without one, you will lose control of who receives what assets and older children could be disadvantaged. It is also possible to set aside certain assets for your current spouse, so he or she is taken care of, even if they waive their right to an elective share.

If you would like to discuss whether a post-marital agreement is right for you, contact Millhorn Elder Law Planning Group. We can meet with you individually or along with your spouse. We are established estate planning attorneys serving the community in The Villages, and you can schedule a free consultation by calling us at 800-743-9732 today.


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