What is a Premarital Agreement?

Most of our divorce clients often contact our divorce practice to ask us about a “prenuptial agreement” more commonly known in the legal system as a “premarital agreement”.   A lot of confusion is usually seen when a request for our divorce attorneys to draft up a prenuptial agreement.

Must I be about to marry someone to get a Premarital Agreement?

In Texas under the Texas Family Code, the following definitions apply to a premarital agreement:

(a) “Premarital agreement” means an agreement between prospective spouses made in contemplation of marriage and to be effective on marriage.

(b) “Property” means an interest, present or future, legal or equitable, vested or contingent, in real or personal property, including income and earnings.

The agreement referenced in under Texas law applies only to parties who intend to be married. It does not apply to parties who are living together but who are not contemplating marriage. Additionally, the property definition is intended to apply to all forms of property interests, including income from property interests and personal services income.

Are there any legal requirements?

A premarital agreement must be in writing and signed by both parties. The agreement is enforceable without consideration.

A premarital agreement need not be signed by the two parties at the same time or on the same day. It must, however, be executed completely before the marriage.

What can I include in the Premarital Agreement?

(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.

However the right of a child to support may not be adversely affected by a premarital agreement.

The Texas Family Code permits parties to enter into a premarital agreement regarding any of the matters listed and any other matter that is not in violation of public policy or which by statute may impose a criminal penalty. The listed matters are not exclusive but are illustrations of what the contract may contain. However, a premarital agreement may not adversely affect the right of a child to support.

When does the Premarital Agreement become Effective?

A premarital agreement becomes effective on marriage.

In re Ja.D.Y., No. 05-16-01412-CV, 2018 WL 3424359 (Tex. App.—Dallas July 16, 2018, no pet.) (mem. op.). When a marriage is annulled, it is as if the marriage never occurred, and any premarital agreement is unenforceable because it never went into effect.

Can I amend a Premarital Agreement or Revoke it?

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.

In the case of Paul v. Merrill Lynch Trust Co., 183 S.W.3d 805 (Tex. App.—Waco 2005, no pet.), the court found that a premarital agreement cannot be revoked by a will unless the will fulfills the appropriate statutory requirements by the will.