Prenuptial deal has its good points, but it might backfire
The information in this column is intended to provide a general understanding of the law, not as legal advice. Readers with legal problems, including those whose questions are addressed here, should consult attorneys for advice on their particular circumstances.
Q: My children are in their early to mid-20s and are doing very well for themselves financially. With today's high divorce rates, I worry about how they can protect the assets they earn before marriage and take into marriage. What advance measures should my children be considering to protect themselves?
A: There is only one sure way for your children to protect themselves, and that is with prenuptial agreements.
Your children not only will enter their marriages with property, but they will continue to make money and acquire other properties while they are married. With a prenuptial agreement, they can have their future spouses agree that everything brought into the marriage, plus everything earned during the marriage, remains the separate property of the spouse who earned it.
Of course, a prenuptial agreement can backfire. One of your children might marry an even more successful person, and the prenuptial agreement will protect that spouse's property from the claims of your child.
To be as enforceable as possible, each of the spouses needs to be represented by his or her own attorney. Negotiating the terms of a prenuptial agreement might not be something any of your children want to do as they prepare for their marriage and the wedding festivities. There is usually nothing enjoyable about being talked into signing a prenup.
On the other hand, it might be best for your children and their future spouses to begin discussing finances before they get married, rather than afterward. At least they will know where the other stands regarding issues related to money.
One major downside to prenuptial agreements is that attorneys' fees can be very expensive. This is especially true if the two prospective spouses cannot agree on the terms, or if the attorneys are looking for an opportunity to bill and bill and bill for their time.
As a parent, you can also take steps to protect your children. Rather than leave property to them outright upon your death, you can instead leave that property to them in trusts for their benefit. Trusts are divorce-protected, and they also can protect the trust property from lawsuits and taxes, if properly drafted.
Q: Two sisters own equal undivided interests in a tract of land which they inherited. One sister wants to leave her half interest to her son. Is there a Texas law that states jointly owned property will pass automatically to the surviving co-owner, or can the sister state in her will that her portion goes to her son?
A: The sisters own the inherited land as tenants in common. This means each of them can give their interests to anyone they want.