Understanding Marital Agreements in Florida
Prenuptial Agreements
These are contracts made before marriage that outline the division of assets and financial responsibilities if the marriage ends in divorce or death.
Postnuptial Agreements
Similar to prenuptial agreements, these are executed after marriage and serve the same purpose.
Both types of agreements can include provisions to protect trust assets, ensuring that they remain intact regardless of marital changes.
Waiving Trust Rights Through Marital Agreements
One promising, yet untested, strategy is to have the beneficiary spouse waive their rights to the trust via a marital agreement. Here’s how it works:
- Voluntary and Informed Consent: The spouse must voluntarily and knowingly agree to waive their rights. While full disclosure of trust assets is generally required, this waiver can potentially reduce the need for such disclosure, keeping sensitive information private.
- Enforceability: For the waiver to hold up in court, it must meet Florida’s legal standards for marital agreements, which include fairness, voluntariness, and adequate disclosure (or a knowing waiver of the right to disclosure).
- Trustee Enforcement: The trustee can enforce this marital agreement, ensuring its terms are upheld during divorce proceedings. This helps maintain control over the trust and prevents the distribution of assets contrary to the settlor’s intentions.
Legal Considerations
While this strategy offers significant benefits, it remains untested in Florida courts. Here are some considerations:
- Drafting: Ensure that the marital agreement is carefully drafted to meet all legal requirements and anticipate potential challenges.
- Disclosure: Although the waiver aims to avoid full disclosure, providing as much information as possible can strengthen the enforceability of the agreement.
- Judicial Review: Be prepared for judicial scrutiny of the waiver’s fairness and the circumstances under which it was executed.
Benefits of Marital Agreements in Estate Planning
- Asset Protection: Keeps trust assets intact and protected during divorce proceedings.
- Privacy: Reduces the need for full disclosure of trust assets, keeping sensitive financial information private.
- Control: Allows the trustee to maintain control over the trust’s integrity and distribution of assets.
Marital agreements, including prenuptial and postnuptial agreements, can be powerful tools in protecting your trust assets in Florida. By including waivers that limit a beneficiary spouse’s rights to the trust, you can ensure greater control and privacy. However, this strategy is promising yet untested, so it’s essential to work with an experienced estate planning attorney to navigate the legal complexities.
Lori Vella is an Estate Planning and Business Attorney. She works virtually throughout Florida and New York, but has her home office in Tampa, Florida. She is mom to a little boy which ignited the passion for helping other families. She and her son enjoy car rides, playgrounds and taking mini-adventures. They also have an organic garden that surprisingly yields vegetables. Lori considers herself well-versed in Seinfeld and welcomes any trivia!
Disclaimer: The Law Office of Lori Vella’s website contains general information directed to Florida residents. This firm does not intend to give legal advice through its pages and/or blog. If you need legal advice, we encourage you to find an attorney licensed in your state. This language on this website does not create an attorney-client relationship between you and this firm.