Premarital agreements, as they are known in Texas, take a wide variety of forms and are entered into for an even wider variety of reasons.  That being said, individuals often enter into premarital agreements for reasons that are misguided as it pertains to the law.  For example, some individuals (or their parents) want to enter into a premarital agreement to protect inheritance or gifts (money, land etc) from a spouse.  Meaning, a spouse who is set to inherit does not want their spouse to get that inheritance as well.  In Texas, an asset acquired through gift or inheritance, is considered separate property and not part of the communal estate.  This is outlined as follows:

A spouse’s separate property consists of:

    1. the property owned or claimed by the spouse before marriage;
    2. the property acquired by the spouse during marriage by gift, devise, or descent; and
    3. the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.

Tex. Fam. Code § 3.001

 

It is difficult to describe what a premarital agreement would contain as there are again, so many factors to consider and the reasons as to why they are entered into, are, again, vast.  Premarital agreements are governed by the Texas Family Code, specifically under Chapter 4.  The formalities of a premarital agreement are simple, “[a] premarital agreement must be in writing and signed by both parties. The agreement is enforceable without consideration.” Tex. Fam. Code § 4.002.  As seen in the Code, there are very few requirements to the execution of a premarital agreement.

Premarital agreements become effective upon marriage, “premarital agreement becomes effective on marriage.” Tex. Fam. Code § 4.004.

As mentioned above, the contents of a premarital agreement can take many forms.  The Code in reference to “Content,” contains the following:

(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.

Tex. Fam. Code § 4.003

Jason Oxner

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