In short: A Florida spouse can waive elective share, intestate share, homestead, and other inheritance rights in a written agreement signed before two witnesses (§ 732.702). No financial disclosure is required before marriage; a waiver signed after marriage requires fair disclosure. Divorce voids will and revocable trust provisions for the ex-spouse (§§ 732.507, 736.1105).
Second marriages are the norm in Florida probate. So are the fights that follow: the new spouse versus the children from the first marriage, over the house, the accounts, and what Dad "would have wanted."
What a Spouse Can Waive
Section 732.702(1) lets a spouse waive, wholly or partly, before or after marriage, the rights to an elective share, intestate share, pretermitted share, homestead, exempt property, family allowance, and preference in appointment as personal representative.
The Formalities
- In writing, two witnesses. The waiver must be "signed by the waiving party in the presence of two subscribing witnesses" (§ 732.702(1)).
- Disclosure depends on timing. "Each spouse shall make a fair disclosure to the other of that spouse’s estate if the agreement, contract, or waiver is executed after marriage. No disclosure shall be required for an agreement, contract, or waiver executed before marriage." (§ 732.702(2))
- No other consideration needed. Signing is enough (§ 732.702(3)).
- Out-of-state agreements. A waiver signed by a nonresident is valid in Florida if valid where signed.
Unless the agreement says otherwise, a waiver of "all rights" in the other spouse’s property, or a complete property settlement entered into in anticipation of separation or divorce, is a waiver of all the rights listed in the statute. Homestead waivers are frequently litigated over the exact words used, including in deeds.
Does a Prenup Stop a Spouse From Contesting the Will?
That depends on what the agreement released, and whether it was valid. The lead video is an appeal over whether a surviving spouse of 30 years released her right to contest the will through a 1999 antenuptial agreement.
What Divorce Does Automatically
- Wills. "Any provision of a will that affects the testator’s spouse is void upon dissolution of the marriage" (§ 732.507(2)). The will is read as if the ex-spouse died at the divorce.
- Revocable trusts. Same rule (§ 736.1105(2)), for decedents dying on or after June 29, 2021.
- Beneficiary designations. Section 732.703 voids many designations of an ex-spouse on life insurance, annuities, retirement accounts, and POD and TOD accounts, with important exceptions, including federal preemption for some employer plans.
The key is a final judgment. If someone dies while the divorce is still pending, the spouse is still a spouse.
When You Have Kids From Before
If a Florida resident dies without a will, leaving a surviving spouse and a child who is not the spouse’s child, the spouse takes one-half of the intestate estate and the descendants take the rest (§ 732.102). Stepchildren don’t inherit by intestacy. Planning fixes that. Silence doesn’t.
Watch: the videos behind this article
Prenup Waiver vs. Will Contest — Does a Surviving Spouse Lose Standing to Challenge the Will?
Does your spouse automatically inherit everything if you die without a will in Florida?
Watch the Real Appellate Arguments
These are recordings of actual Florida appellate oral arguments where marriage, divorce, and inheritance collide, posted on the channel. An argument is not a ruling: read the written opinion before relying on any outcome.
5th DCA | Prenuptial Promised $1,600 a Month for Life — Never Funded
’Granted, Bargained and Sold’ Didn’t Waive Homestead — § 732.702(1) | Reversed
Florida Appellate Court Oral Argument: Divorce Ends in Death—Who Gets the Estate?
Divorce & Estate Battle: Former Wife vs. Husband’s Estate | Kerrigan v. Kerrigan | 2D23-2186
More Arguments on This Issue
Go Deeper
- Does Getting Divorced Cancel My Will in Florida?
- Florida Elective Share: The Surviving Spouse’s 30% and the Deadline That Can Wipe It Out
- The Surviving Spouse and the Florida Homestead: Who Gets the House
Frequently Asked Questions
Can a prenup waive inheritance rights in Florida?
Yes. Under § 732.702, a spouse can waive the elective share, intestate share, homestead, exempt property, family allowance, and other rights in a written agreement signed in the presence of two subscribing witnesses.
Does a Florida prenup require financial disclosure?
Not if signed before marriage. A waiver signed after marriage requires each spouse to make fair disclosure of their estate (§ 732.702(2)).
Does divorce revoke a will in Florida?
Divorce voids the will’s provisions affecting the former spouse, and the will is read as if the ex-spouse died at the time of the divorce (§ 732.507(2)). The same rule applies to revocable trusts (§ 736.1105).
What if a spouse dies before the divorce is final?
The marriage is dissolved only when the court enters the judgment. If a spouse dies first, the survivor is still a surviving spouse unless rights were waived by agreement.
Talk to a Florida probate litigator
Weidner Law, P.A. handles Florida probate, trust, and will disputes from St. Petersburg. If you need a inheritance lawyer for a surviving spouse or prenup dispute, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
Read the law yourself, free: the full Florida Probate Code and Probate Rules and the Florida Trust Code are on floridarules.net.
This article is general information about Florida law, not legal advice about your situation. Reading it, watching the videos, or contacting the firm does not create an attorney-client relationship. Every case turns on its own facts, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
