Are prenuptial agreements necessary in Texas?

Here’s why: Without a prenup, in Texas all income earned during your marriage becomes community property, owned equally by both spouses. Additionally, even though you own the house, once you are married, your wife will have the right to reside in the house rent-free for the rest of her life if you pass away before her. This is the rule even if your will leaves the house to your children.

LEGAL GUIDANCE: My half-brother is using our aging mother’s credit card, is that elder abuse?

There are a few considerations with prenups worth noting. First, both you and your fiancé would need to hire separate attorneys, and that could mean significant legal fees. If you are wealthy, the fees would be money well spent. Second, starting the prenup process well in advance is crucial; it should not be rushed just before the wedding. Last, negotiating the terms of a prenup can be challenging, and your marriage plans may be affected if the two of you are unable to reach an agreement.

Presently, you own the home entirely yourself. If you get married and leave the house to your wife at your death, she will then be free to do whatever she wants with it, including giving it to her daughter. You could also leave the house to your children, and your wife would have the right to live there (assuming no prenup), but her daughter would not be able to claim ownership.

Adding your wife’s name to the deed complicates matters, as she will then own an undivided one-half interest in the house. In that case, her daughter could possibly have a claim, depending on who dies first and what you and your wife decide to do with your interests upon your deaths. And of course, your wife could be awarded part or all of the house if you get divorced.

Q: I am an 84-year-old and have a question regarding my credit card debt. I have one son and no other relatives. I own a home that has a home improvement loan, and I have other considerable credit card debt. Will my son be responsible for paying off these debts?

A: Your son will not be responsible, but your estate will.

After your death, in order to pay all the debts, your house will likely need to be sold. Once the loan is paid off, your estate can use the net proceeds (plus any other money you may have at death) to pay the credit card debts. Any remaining funds would pass to your son.

The information in this column is intended to provide a general understanding of the law, not legal advice. Ronald Lipman of the Houston law firm Lipman & Associates is board-certified in estate planning and probate law by the Texas Board of Legal Specialization. Email questions to: [email protected].