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In Florida, postnuptial agreements have limits

On Behalf of | Jul 25, 2013 | Property Division |

Florida residents may have heard postnuptial agreements are on the rise. Postnuptial agreements are similar to prenuptial agreements, but they are completed once a couple is already wed. The agreements can cover a lot of ground, but they are often used to stipulate the potential division of assets and property.

In some cases, postnuptial agreements are performed as part of estate planning in order to set aside marital assets for children. In other cases, postnuptial agreements are drawn up simply because a couple did not have the chance to put together a prenuptial agreement, or because a relationship is headed toward divorce. Whatever the reason, it is important Florida residents are aware postnuptial agreements can protect a number of interests, but they do have limits.

Postnuptial agreements, like prenups, must meet a number of legal standards in order to be enforceable. Additionally, like divorce decrees, postnuptial agreements are not always the final word. These documents can state how property and assets should be divided, but they cannot actually divide the property; there are a number of steps that must be taken for the actual division to take place.

It may be possible to waive one’s spousal rights to an employee retirement plan in a postnuptial agreement, but only if certain steps are taken.

Employee retirement plans are governed by federal law, and there are numerous requirements to be met if a spouse wants to waive his or her rights as a beneficiary. For example, this right must be waived in the presence of a retirement plan representative or a notary, among other things.

In a recent case, the U.S. Court of Appeals for the Eighth Circuit ruled that a woman who had waived rights to her husband’s 401(k) in a postnuptial agreement had not actually given up her rights because she did not meet the requirements referenced above.

Florida residents should work with their family law attorneys when crafting pre- or postnuptial agreements in order to ensure they are fair and enforceable.

Source: onwallstreet.com “Appeals Court Holds Postnup Doesn’t Waive Spousal Rights to 401(k),” Donald Jay Korn, July 24, 2013

Source: NBC News, “If you ran out of time for a prenup agreement, try a postnup,” Kelley Holland, July 5, 2013


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