Premarital agreements under Texas law

A premarital agreement can change how property and debt would otherwise be divided later in divorce or distributed at death.

Deciding to marry brings happiness and anticipation of the future. At such a time, it is not pleasant to consider the possibility that the marriage could fail or the inevitability that one of you will eventually predecease the other. Even more distasteful to some is thinking about what will happen to money and assets in those situations.

Realistically, it is smart to contemplate these issues before marriage. It does not have to lessen the commitment or damper the celebration. Specifically, a private discussion with a Texas family lawyer about the pros and cons of a premarital agreement, also known as a prenuptial or antenuptial agreement, will give you the information you need to start a separate conversation with your partner. This can be a meaningful discussion about the money, assets and debts each of you bring to the marriage, how wealth may grow during the marriage and what should happen at divorce or death.

Broadly, Texas law says that property a spouse owns before marriage as well as gifts and inheritances to him or her only will remain his or her separate property during and after marriage. Income from separate property during marriage, though, becomes community property to be divided at divorce, as does income earned during the marriage.

These automatic ownership and property designations, as well as how money, assets and debts would otherwise be divided or distributed by law at divorce or death, can be altered by a prenup in almost any way the parties desire.

Texas law defines a premarital agreement as a binding contract between parties planning to marry that becomes effective upon marriage. It must be in writing and signed by both parties. After marriage, the agreement can be modified or revoked only in a writing signed by both.

Texas statute allows the parties to contract about almost any subject:

  • Rights in and concerning all property owned separately or jointly, acquired before or after the marriage, including the right to buy, sell, use, lease, mortgage and other similar acts
  • Disposition of property if the couple separates, divorces or upon death, or upon any other event or its nonoccurrence
  • Elimination or modification of alimony, known as spousal support
  • Creation of legal documents or arrangements to carry out the agreement
  • Ownership in death benefits from life insurance
  • What jurisdiction's law will govern interpretation of the agreement
  • Anything else, even "personal rights and obligations," so long as the provision does not violate public policy or a law with a criminal penalty, or negatively impact future child support rights

Sometimes, however, there can be trouble in paradise, and a spouse may later cry foul over the terms of a prenup. A Texas court can find a premarital agreement unenforceable in either of these situations:

  • A party did not sign voluntarily.
  • The agreement was unconscionable at the time of signing, and prior to execution, one party did not have fair, reasonable disclosure of the assets and debts of the other, did not voluntarily waive in writing the right to that knowledge, and did not have and could not reasonably have had that knowledge.

Unconscionability means that something is grossly unfair or shocking to the conscience. Texas courts in considering whether a prenup is unconscionable have looked at things like the parties' maturity, education level and business experience; prior marital experience; ages; and attempts to protect children.

This is a basic introduction to Texas prenups; an attorney should be consulted with questions.

Attorney Paula Lock Smyth of Paula Lock Smyth Law Offices in Dallas represents clients in all aspects of premarital agreements.