Prenuptial Agreement Challenges

Prenuptial Agreement Challenges

What if you signed a prenup which disinherits you from the probate? Well, sometimes a widow wants to take their elective share. But what if you waived that in the prenup? Do you want to object to the prenup? Or, are you the estate executor, and it’s your job to make sure that the prenup is upheld and given validity? A prenuptial agreement can be challenged, and may even be deemed unenforceable, if proven that (1) it was not voluntarily executed, (2) it was the product of duress, fraud, or overreaching in some way, or (3) the agreement was unconscionable.

Florida Statute 61.079(7) provides:

1. A premarital agreement is not enforceable in an action proceeding under the Florida Family Law Rules of Procedure if the party against whom enforcement is sought proves that:
   1. The party did not execute the agreement voluntarily;
   2. The agreement was the product of fraud, duress, coercion, or overreaching; or
   3. The agreement was unconscionable when it was executed and, before execution of the agreement, that party:
   4. Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
      1. Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
      2. Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.
2. If a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the agreement to be eligible for support under a program of public assistance at the time of separation or marital dissolution, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid that eligibility.
3. An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.

Because the issue of unconscionability is one to be decided by a court, this would necessitate an evidentiary hearing (i.e., a trial).

Moreover, of note is Fla. Stat. §732.702(2). While a spouse is required to make a fair disclosure to the other of the spouse’s estate if the agreement is signed after marriage (i.e., a post-nuptial agreement), no disclosure is required for an agreement executed before marriage. The take-away from the opinion of Florida’s Fourth District Court of Appeal, in Waton v. Waton, 887 So. 2d 419, 424 (Fla. 4th DCA 2004), is that at least a general approximation of a spouse’s net worth, assets, or finances in good faith should be given, so as not to prejudice the other spouse and basically lure them into an unconscionable agreement.

Indeed, a spouse’s right to take an elective share or a spouse’s homestead rights may well be waived by way of a prenuptial agreement. Again, if same is deemed to be unconscionable, this can be overturned by a court.