Florida Statute 732.702
“Waiver of spousal rights”
What it means
A spouse's death-time rights — the elective share, intestate and pretermitted shares, homestead, exempt property, family allowance, community-property-act claims, and preference in appointment as personal representative — can all be waived, wholly or partly, before or after marriage. The vehicle is a written contract, agreement, or waiver signed by the waiving party in the presence of two subscribing witnesses — in practice, a prenuptial or postnuptial agreement.
A waiver of “all rights,” or equivalent language, waives the entire list. The disclosure rule is the trap: after marriage each spouse must fairly disclose their estate; before marriage, no disclosure is required.
- Waivable rights: elective share, intestate share, pretermitted share, homestead, exempt property, family allowance, community-property-act claims, and preference as personal representative.
- Form: a writing signed by the waiving party in the presence of two subscribing witnesses.
- “All rights” language — or a complete property settlement at separation or divorce — waives the full list and renounces benefits under earlier wills.
- Fair disclosure of each spouse's estate is required for a waiver signed after marriage; none is required before marriage.
- No consideration beyond executing the agreement is necessary for validity.
How it plays out
Marital agreements decide more Florida probates than will contests do. When a surviving spouse asks our office about the elective share or homestead, the first document we request is any prenup or postnup, because a broad “all rights” waiver ends most of those claims before they start. The disputes that remain usually center on the postnuptial disclosure requirement — an agreement signed during the marriage, without fair disclosure of what each spouse owned, is the one most vulnerable to challenge.
Where this shows up
Pages on this site where § 732.702 does real work:
Questions people ask
