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What is a Premarital Agreement?

Premarital Agreements are not just for the wealthy. There are many reasons why a couple may want to enter into a premarital agreement that have nothing to do with being wealthy. The premarital agreement can simply accomplish the couple’s wish to keep property, income and debts separate or it can even make separate property community property, depending on the wishes of the couple. It is a way that a couple can alter what Texas law would otherwise do with their property, income and debts upon divorce or death. Premarital Agreements are often used by couples that have children from a previous marriage and want to protect previously acquired property for the benefit of their children from the previous marriage.

When in the process of planning a wedding and a new life together it may be wise to consider whether you want to enter into a premarital agreement. Without a premarital agreement the law decides whether property is separate property (belonging only to the one person, with no rights to that property for the other person) or community property (property that belongs to the couple jointly). With a premarital agreement a couple planning to marry can contract with respect to:

  1. Their property, whether acquired by one or both and whether acquired before or after marriage;
  2. The right to manage or control property (such as buying, selling, encumbering, transferring, etc.);
  3. The division of property upon divorce, death or any other occurrence designated;
  4. Spousal support;
  5. The making of a will, trust or other agreements to carry out the premarital agreement;
  6. Death benefits from a life insurance policy;
  7. The choice of law to govern the construction of the agreement; and
  8. Any other rights or obligations that are not in violation of public policy or a statute imposing a criminal penalty.

The premarital agreement is signed by the parties prior to marriage. It may only be amended or revoked after marriage in writing and signed by the parties. The parties must also either give financial disclosures to each other or sign waivers of financial disclosures. Although the agreement does not have to be recorded, it may be wise to record it among the deed records in the county where a party resides and in the county in which any real estate is located. Filing provides constructive notice to a good-faith purchaser for value.

Premarital Agreements are very complicated. It is important that an experienced family law attorney be consulted when entering into a premarital agreement.