Law Offices of James W. Mallonee, P.A.
Port Charlotte 941-206-2223
Venice 941-207-2223
Helping individuals & families across Florida with their legal matters since 2005

Pre-Nuptial Agreements

What happens if prior to getting married, one of the future spouses comes to the other and requests a pre-nuptial agreement because they want to protect their personal assets that they have worked so hard to earn. This is especially daunting when the request for the pre-nuptial agreement is made the day of or day before the wedding. But that is exactly what happened in the Williams-Paris v. Joseph case.

The husband demanded from the future spouse the day of the wedding to find a pre-nuptial agreement on-line and have it signed. She did so, printed it out and the pair got a notary to acknowledge their signatures. The signing took place in the State of Massachusetts, even though the pair were citizens of the State of Florida.

Florida law requires that each party disclose to the other what their assets and liabilities are prior to getting married. Massachusetts law does not provide for such disclosure. Presumably, the parties did expose their assets and liabilities. The pre-nuptial agreement included the standard language concerning the homestead where the future spouse was to give-up any right she had to the homestead of the husband.

The future spouse was 58 years old and the future husband was 83 years of age at the time of the wedding. As expected, the husband died four years following the marriage. The next thing was to determine the validity of the pre-nuptial agreement. The surviving spouse filed for probate and requested the court to invalidate the pre-nuptial agreement based on fraud, deceit, duress, coercion, misrepresentation and overreaching among other things. The children of the decedent moved for summary judgment validating the agreement but left open the possibility of a defense called mistake. The court ruled in favor of the children including that Florida law applied even though the agreement was signed in Massachusetts. The spouse then appealed her loss.

The appellant court reviewed the holding by finding that one section of the pre-nuptial agreement excluded the homestead while in another section it read that each party waived any rights to the homestead. As is well known in Florida, the homestead is an asset founded on public policy to protect a spouse and children under age 18. The court ruled that the surviving spouse’s interest in the homestead was not waived because of the ambiguity contained in the two sections concerning whether it was waived or not.

The court based its conclusion that the wife and children stood to benefit from the decedent’s homestead. In addition, Florida has specific statutes addressing the requirements for waiving homestead protection and the pre-nuptial agreement did not provide those specific requirements. In the final analysis, the wife received her homestead protection simply because Florida law was the one applied and not Massachusetts.

The message to be learned from this case is not to rush into a pre-nuptial agreement without getting counselling from a lawyer and make certain everyone agrees as to the law that will be applied. The selection of the law in this case made all the difference in protecting the spouse. If you are involved in a demand to sign a pre-nuptial agreement the day before the wedding, talk to the attorney of your choice and be sure you understand what you are about to sign. It could best advice you receive.

This article is intended for informational use only and is not for purposes of providing legal advice or association of a lawyer – client relationship

Designed and Powered by NextClient

© 2013 - 2024 Law Offices of James W. Mallonee, P.A. All rights reserved.
Custom WebExpress™ attorney website design by