Couples getting married again in their late sixties tend to show up with the same three documents. A brokerage statement or two, the deed to a condo a couple of blocks off A1A, and a will one of them signed during a first marriage that ended in either a funeral or a courthouse. He is 71 and still does his own yard work. She is 68 and has been widowed six years. The wedding is a Saturday in November, small, at a daughter’s place, and the cake is already ordered.
The word prenup rarely comes up in the first twenty minutes. What comes up is the condo, and the adult children, and whether the will signed in 2009 still handles any of that. It does not. Once you remarry, Florida law rewrites a good part of what that document was supposed to do, and it does the rewriting without asking.
the paperwork is not about divorce
A premarital agreement signed at 68 is a death document. The divorce provisions are filler and both of you know it while you are initialing them. You are not planning for a courtroom fight over a marriage that soured. You are planning for the six months after a funeral, when your adult children and your surviving spouse sit in the same room with a probate lawyer and a condo that everybody has an opinion about.
In forty years of family law practice, I can count on one hand the late-life premarital agreements I have seen fought over in a divorce. The ones that got fought over got fought over in probate court, by people who were not at the wedding.
Florida hands a surviving spouse rights that your will does not override. The elective share under section 732.2065 is thirty percent of the elective estate, and the elective estate is a wide net. It picks up the revocable trust, the payable-on-death bank account, the joint accounts, the net cash surrender value of life insurance, the retirement accounts. Assets you assumed were sitting safely outside probate get counted anyway.
Then there is the pretermitted spouse rule in section 732.301. Marry after you sign a will, and your new spouse takes a share of your estate as though you had died without a will at all, unless the will provided for that spouse, or disclosed an intent not to, or the spouse waived the right in writing. His 2009 will named his daughter. It did not stop working when he remarried. It just stopped being in charge.
the condo is the whole fight
Ask any Volusia divorce lawyer what the second-marriage files look like and you will hear the same short list every time: the house, the retirement account, and a will signed during the first marriage.
Florida homestead law does not care what your will says. Under Article X, Section 4(c) of the state constitution, homestead cannot be devised at all if the owner is survived by a spouse or a minor child, with one carve-out: where there is no minor child, it can be devised to the spouse. You can leave the condo to your new wife outright. You cannot leave it to your daughter. A revocable trust does not route around the problem either, because section 732.4015 applies the same restriction to the trust. Section 732.401 then sorts out the wreckage. Your spouse takes a life estate in the home with the remainder vesting in your descendants, or your spouse records a notice of election within six months of your death and takes an undivided one-half interest as a tenant in common with your children instead.
Six months, running from the date of death. But the deadline does not stretch, and no judge is going to widen it for you.
Picture that second option in a two-bedroom condo off Granada. Your widow owns half. Your daughter in Atlanta owns half. They split the taxes, the insurance, and the seawall assessment in proportion to their shares, and neither one can sell the unit itself without the other agreeing. Most Palm Coast lawyers can tell you what comes next, because it is the same thing every time. Somebody files a partition action against somebody they met at a wedding.
Those rights can be waived, and section 732.702 is the machinery for it. A written contract, agreement, or waiver, signed by the waiving party in front of two subscribing witnesses. Language waiving “all rights” sweeps in the elective share, the intestate share, the pretermitted share, homestead, exempt property, family allowance, and even preference to serve as personal representative. No consideration required beyond the signature itself.
the calendar matters more than the language
Now the part that surprises people. Sign before the wedding and section 732.702 requires no financial disclosure whatsoever. Sign after the wedding and each spouse has to make fair disclosure of their estate to the other.
Read that twice, because it runs against every instinct you have about fairness. The legislature made it easier to waive a spouse’s inheritance rights before the ceremony than after it. So the couple who decides to handle the paperwork once things settle down after the honeymoon has quietly made the job harder on themselves, and nobody warned them.
The family law side runs on its own statute. Section 61.079 governs premarital agreements, and subsection (7) is where they go to die. The party attacking the agreement has to prove it was not signed voluntarily, or that it was the product of fraud, duress, coercion, or overreaching, or that it was unconscionable when executed and, before signing, that party was not given fair and reasonable disclosure, did not waive disclosure in writing, and could not reasonably have known what the other side owned. Unconscionability gets decided by the judge as a matter of law.
Which is why the date on the signature page carries more weight than most of the clauses above it. An agreement handed across the table four days before the ceremony, with the guests already booked into a hotel on the beach, gifts a duress argument to the other side for nothing. Ormond Beach lawyers tell couples to sign in September for a November wedding, and it is not because the extra weeks are billable.
Chapter 61 is the same chapter that governs a Daytona Beach gray divorce, which tells you something about how the state files these relationships. The law does not have a separate shelf for people who found each other at 68.
two checks nobody thinks to run
If you are receiving durational alimony from a prior marriage, look at section 61.08(8)(a) before you set a date. Durational alimony terminates on the death of either party or on the remarriage of the person receiving it. It ends by operation of law the day you say I do, no motion required, and people who know this in the abstract forget it entirely somewhere between the caterer and the guest list.
Social Security runs on a rule that rewards patience. A surviving spouse who remarries at 60 or older keeps eligibility for survivor benefits on the deceased spouse’s record. Remarry at 59 and that door stays shut while the new marriage lasts. Benefits drawn on a living ex-spouse’s record work the opposite way, and generally stop the moment you remarry. Four months on a calendar has changed the arithmetic of somebody’s retirement more than once.
what a good one looks like
The agreements that survive are the boring ones. Separate counsel on each side. A schedule of assets attached even though the statute does not demand disclosure before marriage, because a signed schedule makes a duress claim look thin five years later. The house named by unit number and legal description, not buried in a general clause about real property.
And the good ones give something back rather than only taking. A right for the surviving spouse to stay in the condo for a set number of years while the children cover the taxes. A small life insurance policy naming the new spouse so the kids can keep the house whole. An agreement that waives everything and offers nothing in return is the one an adult child reads aloud at a mediation in a tone you would not care for.
The couple with the condo off A1A signed in September. She wrote out her assets on a legal pad first, the condo listed by unit number in handwriting that slanted uphill, and that page went into the final agreement as Exhibit A. His daughter drove down from Atlanta for the wedding.
At Rice Law Firm, we draft premarital agreements, homestead and elective share waivers, and the wills and deeds that have to match them, for couples across Volusia County, Flagler County, and the beachside communities in between. If a second marriage is on your calendar, call our Daytona Beach office at 386-257-1222 and let us look at what your current will and deed do right now, before you sign anything new.