CHAPTER 4. PREMARITAL AND MARITAL PROPERTY AGREEMENTS - Texas Statutes

FAMILY CODE

TITLE 1. THE MARRIAGE RELATIONSHIP

SUBTITLE B. PROPERTY RIGHTS AND LIABILITIES

CHAPTER 4. PREMARITAL AND MARITAL PROPERTY AGREEMENTS

SUBCHAPTER A. UNIFORM PREMARITAL AGREEMENT ACT

Sec. 4.001. DEFINITIONS. In this subchapter:

(1) "Premarital agreement" means an agreement between

prospective spouses made in contemplation of marriage and to be

effective on marriage.

(2) "Property" means an interest, present or future, legal or

equitable, vested or contingent, in real or personal property,

including income and earnings.

Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17,

1997.

Sec. 4.002. FORMALITIES. A premarital agreement must be in

writing and signed by both parties. The agreement is enforceable

without consideration.

Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17,

1997.

Sec. 4.003. CONTENT. (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.

Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17,

1997.

Sec. 4.004. EFFECT OF MARRIAGE. A premarital agreement becomes

effective on marriage.

Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17,

1997.

Sec. 4.005. AMENDMENT OR REVOCATION. 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.

Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17,

1997.

Sec. 4.006. ENFORCEMENT. (a) A premarital agreement is not

enforceable if the party against whom enforcement is requested

proves that:

(1) the party did not sign the agreement voluntarily; or

(2) the agreement was unconscionable when it was signed and,

before signing the agreement, that party:

(A) was not provided a fair and reasonable disclosure of the

property or financial obligations of the other party;

(B) did not voluntarily and expressly waive, in writing, any

right to disclosure of the property or financial obligations of

the other party beyond the disclosure provided; and

(C) did not have, or reasonably could not have had, adequate

knowledge of the property or financial obligations of the other

party.

(b) An issue of unconscionability of a premarital agreement

shall be decided by the court as a matter of law.

(c) The remedies and defenses in this section are the exclusive

remedies or defenses, including common law remedies or defenses.

Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17,

1997.

Sec. 4.007. ENFORCEMENT: VOID MARRIAGE. 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.

Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17,

1997.

Sec. 4.008. LIMITATION OF ACTIONS. A statute of limitations

applicable to an action asserting a claim for relief under a

premarital agreement is tolled during the marriage of the parties

to the agreement. However, equitable defenses limiting the time

for enforcement, including laches and estoppel, are available to

either party.

Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17,

1997.

Sec. 4.009. APPLICATION AND CONSTRUCTION. This subchapter shall

be applied and construed to effect its general purpose to make

uniform the law with respect to the subject of this subchapter

among states enacting these provisions.

Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17,

1997.

Sec. 4.010. SHORT TITLE. This subchapter may be cited as the

Uniform Premarital Agreement Act.

Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17,

1997.

SUBCHAPTER B. MARITAL PROPERTY AGREEMENT

Sec. 4.101. DEFINITION. In this subchapter, "property" has the

meaning assigned by Section 4.001.

Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17,

1997.

Sec. 4.102. PARTITION OR EXCHANGE OF COMMUNITY PROPERTY. At any

time, the spouses may partition or exchange between themselves

all or part of their community property, then existing or to be

acquired, as the spouses may desire. Property or a property

interest transferred to a spouse by a partition or exchange

agreement becomes that spouse's separate property. The partition

or exchange of property may also provide that future earnings and

income arising from the transferred property shall be the

separate property of the owning spouse.

Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17,

1997. Amended by Acts 2003, 78th Leg., ch. 230, Sec. 2, eff.

Sept. 1, 2003.

Amended by:

Acts 2005, 79th Leg., Ch.

477, Sec. 1, eff. September 1, 2005.

Sec. 4.103. AGREEMENT BETWEEN SPOUSES CONCERNING INCOME OR

PROPERTY FROM SEPARATE PROPERTY. At any time, the spouses may

agree that the income or property arising from the separate

property that is then owned by one of them, or that may

thereafter be acquired, shall be the separate property of the

owner.

Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17,

1997.

Sec. 4.104. FORMALITIES. A partition or exchange agreement

under Section 4.102 or an agreement under Section 4.103 must be

in writing and signed by both parties. Either agreement is

enforceable without consideration.

Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17,

1997.

Amended by:

Acts 2005, 79th Leg., Ch.

477, Sec. 2, eff. September 1, 2005.

Sec. 4.105. ENFORCEMENT. (a) A partition or exchange agreement

is not enforceable if the party against whom enforcement is

requested proves that:

(1) the party did not sign the agreement voluntarily; or

(2) the agreement was unconscionable when it was signed and,

before execution of the agreement, that party:

(A) was not provided a fair and reasonable disclosure of the

property or financial obligations of the other party;

(B) did not voluntarily and expressly waive, in writing, any

right to disclosure of the property or financial obligations of

the other party beyond the disclosure provided; and

(C) did not have, or reasonably could not have had, adequate

knowledge of the property or financial obligations of the other

party.

(b) An issue of unconscionability of a partition or exchange

agreement shall be decided by the court as a matter of law.

(c) The remedies and defenses in this section are the exclusive

remedies or defenses, including common law remedies or defenses.

Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17,

1997.

Sec. 4.106. RIGHTS OF CREDITORS AND RECORDATION UNDER PARTITION

OR EXCHANGE AGREEMENT. (a) A provision of a partition or

exchange agreement made under this subchapter is void with

respect to the rights of a preexisting creditor whose rights are

intended to be defrauded by it.

(b) A partition or exchange agreement made under this subchapter

may be recorded in the deed records of the county in which a

party resides and in the county in which the real property

affected is located. An agreement made under this subchapter is

constructive notice to a good faith purchaser for value or a

creditor without actual notice only if the instrument is

acknowledged and recorded in the county in which the real

property is located.

Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17,

1997.

SUBCHAPTER C. AGREEMENT TO CONVERT SEPARATE PROPERTY TO COMMUNITY

PROPERTY

Sec. 4.201. DEFINITION. In this subchapter, "property" has the

meaning assigned by Section 4.001.

Added by Acts 1999, 76th Leg., ch. 692, Sec. 3, eff. Jan. 1,

2000.

Sec. 4.202. AGREEMENT TO CONVERT TO COMMUNITY PROPERTY. At any

time, spouses may agree that all or part of the separate property

owned by either or both spouses is converted to community

property.

Added by Acts 1999, 76th Leg., ch. 692, Sec. 3, eff. Jan. 1,

2000.

Sec. 4.203. FORMALITIES OF AGREEMENT. (a) An agreement to

convert separate property to community property:

(1) must be in writing and:

(A) be signed by the spouses;

(B) identify the property being converted; and

(C) specify that the property is being converted to the spouses'

community property; and

(2) is enforceable without consideration.

(b) The mere transfer of a spouse's separate property to the

name of the other spouse or to the name of both spouses is not

sufficient to convert the property to community property under

this subchapter.

Added by Acts 1999, 76th Leg., ch. 692, Sec. 3, eff. Jan. 1,

2000.

Sec. 4.204. MANAGEMENT OF CONVERTED PROPERTY. Except as

specified in the agreement to convert the property and as

provided by Subchapter B, Chapter 3, and other law, property

converted to community property under this subchapter is subject

to:

(1) the sole management, control, and disposition of the spouse

in whose name the property is held;

(2) the sole management, control, and disposition of the spouse

who transferred the property if the property is not subject to

evidence of ownership;

(3) the joint management, control, and disposition of the

spouses if the property is held in the name of both spouses; or

(4) the joint management, control, and disposition of the

spouses if the property is not subject to evidence of ownership

and was owned by both spouses before the property was converted

to community property.

Added by Acts 1999, 76th Leg., ch. 692, Sec. 3, eff. Jan. 1,

2000.

Sec. 4.205. ENFORCEMENT. (a) An agreement to convert property

to community property under this subchapter is not enforceable if

the spouse against whom enforcement is sought proves that the

spouse did not:

(1) execute the agreement voluntarily; or

(2) receive a fair and reasonable disclosure of the legal effect

of converting the property to community property.

(b) An agreement that contains the following statement, or

substantially similar words, prominently displayed in bold-faced

type, capital letters, or underlined, is rebuttably presumed to

provide a fair and reasonable disclosure of the legal effect of

converting property to community property:

"THIS INSTRUMENT CHANGES SEPARATE PROPERTY TO COMMUNITY PROPERTY.

THIS MAY HAVE ADVERSE CONSEQUENCES DURING MARRIAGE AND ON

TERMINATION OF THE MARRIAGE BY DEATH OR DIVORCE. FOR EXAMPLE:

"EXPOSURE TO CREDITORS. IF YOU SIGN THIS AGREEMENT, ALL OR PART

OF THE SEPARATE PROPERTY BEING CONVERTED TO COMMUNITY PROPERTY

MAY BECOME SUBJECT TO THE LIABILITIES OF YOUR SPOUSE. IF YOU DO

NOT SIGN THIS AGREEMENT, YOUR SEPARATE PROPERTY IS GENERALLY NOT

SUBJECT TO THE LIABILITIES OF YOUR SPOUSE UNLESS YOU ARE

PERSONALLY LIABLE UNDER ANOTHER RULE OF LAW.

"LOSS OF MANAGEMENT RIGHTS. IF YOU SIGN THIS AGREEMENT, ALL OR

PART OF THE SEPARATE PROPERTY BEING CONVERTED TO COMMUNITY

PROPERTY MAY BECOME SUBJECT TO EITHER THE JOINT MANAGEMENT,

CONTROL, AND DISPOSITION OF YOU AND YOUR SPOUSE OR THE SOLE

MANAGEMENT, CONTROL, AND DISPOSITION OF YOUR SPOUSE ALONE. IN

THAT EVENT, YOU WILL LOSE YOUR MANAGEMENT RIGHTS OVER THE

PROPERTY. IF YOU DO NOT SIGN THIS AGREEMENT, YOU WILL GENERALLY

RETAIN THOSE RIGHTS."

"LOSS OF PROPERTY OWNERSHIP. IF YOU SIGN THIS AGREEMENT AND YOUR

MARRIAGE IS SUBSEQUENTLY TERMINATED BY THE DEATH OF EITHER SPOUSE

OR BY DIVORCE, ALL OR PART OF THE SEPARATE PROPERTY BEING

CONVERTED TO COMMUNITY PROPERTY MAY BECOME THE SOLE PROPERTY OF

YOUR SPOUSE OR YOUR SPOUSE'S HEIRS. IF YOU DO NOT SIGN THIS

AGREEMENT, YOU GENERALLY CANNOT BE DEPRIVED OF OWNERSHIP OF YOUR

SEPARATE PROPERTY ON TERMINATION OF YOUR MARRIAGE, WHETHER BY

DEATH OR DIVORCE."

(c) If a proceeding regarding enforcement of an agreement under

this subchapter occurs after the death of the spouse against whom

enforcement is sought, the proof required by Subsection (a) may

be made by an heir of the spouse or the personal representative

of the estate of that spouse.

Added by Acts 1999, 76th Leg., ch. 692, Sec. 3, eff. Jan. 1,

2000. Amended by Acts 2003, 78th Leg., ch. 230, Sec. 3, eff.

Sept. 1, 2003.

Sec. 4.206. RIGHTS OF CREDITORS; RECORDING. (a) A conversion

of separate property to community property does not affect the

rights of a preexisting creditor of the spouse whose separate

property is being converted.

(b) A conversion of separate property to community property may

be recorded in the deed records of the county in which a spouse

resides and of the county in which any real property is located.

(c) A conversion of real property from separate property to

community property is constructive notice to a good faith

purchaser for value or a creditor without actual notice only if

the agreement to convert the property is acknowledged and

recorded in the deed records of the county in which the real

property is located.

Added by Acts 1999, 76th Leg., ch. 692, Sec. 3, eff. Jan. 1,

2000.