Texas recognizes and enforces premarital or prenuptial agreements between prospective spouses who intend to avoid any uncertainties regarding property interests at the conclusion of their marriage, whether by death or divorce. The relevant provisions of the Texas Family Code are reproduced below.
Sec. 4.001. Definitions:
(1) “Premarital agreement” means an agreement between prospective spouses made in contemplation of marriage and to be effective on marriage.
(2) “Property” means an interest, present or future, legal or equitable, vested or contingent, in real or personal property, including income and earnings.
Sec. 4.002. FORMALITIES.
A premarital agreement must be in writing and signed by both parties. The agreement is enforceable without consideration.
Sec. 4.003. CONTENT.
(a) The parties to a premarital agreement may contract with respect to:
(1) the rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
(2) the right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
(3) the disposition of property on separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
(4) the modification or elimination of spousal support;
(5) the making of a will, trust, or other arrangement to carry out the provisions of the agreement;
(6) the ownership rights in and disposition of the death benefit from a life insurance policy;
(7) the choice of law governing the construction of the agreement; and
(8) any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.
(b) The right of a child to support may not be adversely affected by a premarital agreement.
Sec. 4.005. AMENDMENT OR REVOCATION.
After marriage, a premarital agreement may be amended or revoked only by a written agreement signed by the parties. The amended agreement or the revocation is enforceable without consideration.
Sec. 4.006. ENFORCEMENT.
(a) A premarital agreement is not enforceable if the party against whom enforcement is requested proves that:
(1) the party did not sign the agreement voluntarily; or
(2) the agreement was unconscionable when it was signed and, before signing the agreement, that party:
(A) was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
(B) 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
(C) did not have, or reasonably could not have had, adequate knowledge of the property or financial obligations of the other party.
(b) An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.
(c) The remedies and defenses in this section are the exclusive remedies or defenses, including common law remedies or defenses.
No one marries with the intention of divorcing. However, every marriage does eventually end, by death if nothing else. A prenuptial or premarital agreement can reduce the uncertainty and complexity of property issues and avoid legal proceedings with heirs and third parties. It will not govern child custody or child support obligations.
Parties contemplating marriage should consider the scope and nature of property they own prior to marriage, along with their anticipated career paths and retirement plans, to determine whether they would benefit from executing a premarital agreement. If presented with a proposed agreement, consultation with an attorney is strongly recommended.
At Bailey & Galyen, our attorneys will provide a free initial consultation to discuss the benefits and nature of a premarital agreement. We can assist prospective spouses in drafting or negotiating such instruments.
Schedule a free appointment at any of the many convenient Bailey & Galyen offices. Remember, these are complex and important documents and should be prepared well in advance of the date of marriage.
by R. Keith Spencer, Board-Certified Family Law Attorney
