SMITH & GARG, LLC

By the Estate Planning Attorneys at Smith & Garg, LLC, serving The Woodlands, Spring, Houston, Conroe, Humble, Kingwood, Tomball, Cypress, Huntsville, Westchase, Southwest, Sugar Land, West Oaks, Alief, Memorial, River Oaks, Stafford, Katy, Missouri City. Sugarland, Richmond, Alief and other surrounding areas in North, Northwest, South and Southwest Houston.

A premarital agreement can be an estate planning tool. Premarital agreements are frequently drafted in conjunction with Wills and other advance directives, a few weeks before a wedding in order to effectuate the parties’ wishes as they relate to the eventual disposition of property.

Chapter 4 of the Texas Family Code defines a premarital agreement, commonly referred to as a “pre-nup,” as “an agreement between prospective spouses made in contemplation of marriage and to be effective on marriage.” By definition, premarital agreements only become effective upon the actual occurrence of a marriage. Texas courts have held that a premarital agreement should be “construed as broadly as possible in order to allow the parties to contract with respect to property or other rights incident to the marriage, provided the constitutional and statutory definitions of separate and community property or the requirements of public policy are not violated.” A premarital agreement must be written and signed by both parties; however, there is no requirement for consideration for the agreement to be enforceable.

The idea that consideration is unnecessary merely means that no party to the agreement need give or get anything for the agreement to be enforceable; however, neither party can waive the right of a child to support.

The parties to a premarital agreement can amend or revoke the agreement, but either must be done in writing signed by both parties.

A premarital agreement can be rendered unenforceable under certain circumstances. For a list of these, see the Texas Family Code, section 4.006. One of the most common reasons for a premarital agreement to be considered unenforceable is the lack of full disclosure of assets (and liabilities) before the agreement. A premarital agreement can also be broken based on a finding that is unconscionable. Texas courts have not defined unconscionability; however, they have listed several factors that can contribute to it. Such factors can include, “maturity of the individuals, their business backgrounds, their educational levels, their experiences in prior marriages, their respective ages and their motivations to protect their respective children.” Additionally, unfairness by itself does is not sufficient to establish unconscionability. To be considered unconscionable, a premarital agreement “must be ‘so far one-sided that no reasonable person could consider it to be an arm’s length transaction.’”

What happens if the marriage is determined to be void? Section 4.007 of the Texas Family Code states that “If a marriage is determined to be void, an agreement that would otherwise have been a premarital agreement is enforceable only to the extent necessary to avoid an inequitable result.” For example, if the parties have been married and cohabitated for a substantial period and have relied on the agreement until the marriage is determined to be void, the agreement may be considered valid. 

We invite you to contact us for a consultation. Call Smith & Garg, LLC at 1-877-517-4275 or complete our contact form.