## Facts

- Svetlana A. Ozerova Herpich and Howard M. Herpich signed a prenuptial agreement on the day of their first marriage in February 2003.
- The agreement broadly waived each spouse’s rights to the other’s separately titled property, including surviving-spouse rights in the other’s estate.
- The agreement stated that “in the event of separation and reconciliation” the property-division provisions would remain binding unless modified in writing, and it included an anti-merger clause providing it would be incorporated but not merged into any divorce judgment.
- The couple separated in March 2003 and divorced in early 2005; during the divorce they executed a marital settlement agreement dividing marital assets.
- About six months after the divorce, the parties remarried each other.
- Howard died intestate about two years into the second marriage.
- Svetlana was appointed personal representative and filed probate petitions to determine exempt property, determine homestead status, and obtain a family allowance.
- Howard’s adult children objected, asserting the prenuptial agreement barred Svetlana’s claims.
- The probate court denied Svetlana’s petitions, concluding the prenuptial agreement remained effective after divorce and remarriage based on the “separation and reconciliation” clause and anti-merger provision.

## Issues

1. Whether a prenuptial agreement made “in anticipation of marriage,” with a “separation and reconciliation” clause and an anti-merger provision, remains enforceable after the parties divorce and later remarry each other.
2. Whether, after divorce and remarriage, the agreement bars the surviving spouse’s statutory probate claims (exempt property, homestead, and family allowance).

## Decision

- The Fifth District Court of Appeal reversed and remanded.
- The court held the prenuptial agreement did not survive the divorce and did not apply to the parties’ later, second marriage.
- The court rejected equating “separation and reconciliation” with “divorce and remarriage.”
- The court directed that the surviving spouse’s petitions be considered without treating the prenuptial agreement as a bar.

## Legal Principles

- Prenuptial agreements are interpreted under ordinary contract principles; unambiguous terms are given their plain meaning.
- “Separation and reconciliation” refers to a temporary rupture and resumption within an existing marriage; it does not include a legal dissolution and later creation of a new marriage.
- An anti-merger clause preserves a contract’s independent enforceability when incorporated into a dissolution judgment, but it does not, without express language, extend the contract to govern a future, distinct marriage between the same parties.
- A prenuptial agreement tied to a particular marriage may be treated as fully performed and terminated upon dissolution when the parties’ property rights are resolved in the divorce.

## Conclusion

Because the prenuptial agreement did not carry over from the first marriage to the parties’ later remarriage, the surviving spouse was not contractually barred from asserting statutory probate benefits, and the probate order denying her petitions was reversed for further proceedings.


Herpich v. Estate of Herpich, 994 So. 2d 1195 (Fla. Dist. Ct. App. 5th Dist. 2008)