A Texas postnuptial agreement is a legal contract married spouses use to determine asset distribution upon their divorce or one spouse’s death. State law commonly refers to these documents as “post-marital property agreements.” With this agreement in place, a couple can decide where their property will go without defaulting to the state’s property laws.
Postnups differ from prenups because couples sign them after they marry rather than before, meaning they’re subject to different scrutiny under state law.
Legal Considerations
Title 1 of the Texas Family Code covers the marriage relationship. Chapter 4 covers marital property agreements, including postnups, while Chapter 3 details marital property rights and liabilities.
- Signing Requirements: The agreement must be signed by both parties (§ 4.104 FAM).
- Dividing Property: Community property (§ 3.003 FAM).
Case law also guides some elements of postnups. For example, Marsh v. Marsh, 949 S.W.2d 734 (1997) states that postnups contain a fiduciary duty that prenups don’t have.
Understanding Postnuptial Agreements in Texas
Effect of Marital Property Agreements
§ 3.410 FAM states that a postnup executed before, on, or after September 1, 2009, is effective to partition, assign, release, or waive a claim for economic reimbursement, contribution, or both. The agreement must satisfy the requirements in Chapter 4 of the Texas Family Code. The agreement is effective under the law as it existed before September 1, 2009, unless the agreement states otherwise.
Assets and Property Rights
Property Ownership
- If the spouses’ community estate and the separate estate of a spouse have an ownership interest in a property, the rule of inception of title determines the respective ownership interests of the marital estates. [1]
Wife’s Separate Property
- Either spouse’s separate property consists of [2] :
- The property they claimed or owned before marriage;
- The property they acquired during marriage by descent, devise, or gift; and
- The recovery they sustained from personal injuries (except any recovery for loss of their earning capacity during the marriage).
Capacity to Contract
- Any person, regardless of age, who has been married has the capacity to contract. [3]
Business and Earnings
- The exchange or partition of property may also provide that future income and earnings from the transferred property will be the owning spouse’s separate property. [4]
- The spouses may concur that the income arising from the separate property that one of them owns or may acquire thereafter will be the owner’s separate property. [5]
Marriage and Divorce
Spousal Support
- The court will determine a spouse’s eligibility for maintenance based on their financial needs and if they will lack sufficient property without maintenance. [6]
- A court may not order one spouse to pay maintenance to another if the amount exceeds $5,000 or 20% of the spouse’s average monthly gross income. [7]
Estate Planning and Inheritance
Nonprobate Transfers on Death
- At any time, spouses can agree that part or all of their community property (whether it currently exists or will be acquired) becomes the surviving spouse’s property when one spouse passes away. [8]
Inheritance Rights
- If a person who dies without a will leaves a surviving spouse the estate (excluding the community estate) to which the person had title passes as follows: [9]
- If the person has descendants, the surviving spouse takes one-third of the personal estate and receives a life estate in one-third of the person’s land.
- If the person has no descendants, the surviving spouse receives all of the personal estate, one-half of the person’s land without a remainder to any person, and one-half of the person’s land passes.
