What a Texas Prenup Can — and Can’t — Include

Sep 17, 2026

Texas Family Code § 4.003 lists eight categories of terms couples may agree on, and one category they may not. Here is the line, drawn precisely.

Bustos Family Law PLLC | Austin, Texas

Prospective spouses often arrive at our office with a list of things they have heard a prenup can do — some accurate, some borrowed from television, and some borrowed from the law of other states. Texas is more specific than most people expect. The permitted subject matter is enumerated by statute, and the prohibition is stated in a single sentence.

The eight categories Texas expressly allows

Texas Family Code § 4.003(a) provides that parties to a premarital agreement may contract with respect to:

  1. Property rights and obligations. The rights of each party in “any of the property of either or both of them whenever and wherever acquired or located.” This is the workhorse provision — it is what characterizes assets as separate or community.
  2. Management and control. The right to buy, sell, use, transfer, exchange, lease, assign, encumber, or otherwise manage property during the marriage.
  3. Disposition on divorce, or death. Including on “the occurrence or nonoccurrence of any other event” — the statutory hook for milestone-based terms.
  4. Modification or elimination of spousal support. Discussed in detail below.
  5. Wills, trusts, and other arrangements. Provisions requiring a party to make a will or trust to carry out the agreement — essential for coordinating a prenup with an estate plan.
  6. Life insurance death benefits. Ownership rights in and disposition of the proceeds.
  7. Choice of law. The law governing construction of the agreement — which matters for couples who may not stay in Texas.
  8. Any other matter, including personal rights and obligations, “not in violation of public policy or a statute imposing a criminal penalty.”

That eighth catch-all is broad, and the Texas Supreme Court has instructed that Chapter 4 be read “as broadly as possible to allow the parties flexibility to contract with respect to property incident to a marriage.” Williams v. Williams, 569 S.W.2d 867 (Tex. 1978). But it is not unlimited, and its two express limits do real work.

What a Texas prenup cannot do

It cannot touch child support. Section 4.003(b) is one sentence: “The right of a child to support may not be adversely affected by a premarital agreement.” The right belongs to the child, not to the parents, and it is not theirs to trade.

Parents may propose support terms, but only within a separate statutory framework. Under § 154.124, parties may submit a written agreement on child support, but a court will render an order in accordance with it only “[i]f the court finds that the agreement is in the child’s best interest” — and even then, subsection (c) provides that the support terms “are not enforceable as a contract.” The Texas Supreme Court applied the same principle in Williams v. Patton, 821 S.W.2d 141 (Tex. 1991), holding that parents may not privately settle or waive child support arrearages before they are reduced to judgment.

It cannot decide custody. Conservatorship and possession are governed by the best-interest standard and are determined by the court on the facts as they exist at the time of suit. An agreement purporting to fix custody in advance runs directly into the public policy limit in § 4.003(a)(8).

It cannot be oral, unsigned, or informally amended. Section 4.002 requires a writing signed by both parties. In Ruiz v. Ruiz, No. 04-16-00016-CV (Tex. App.—San Antonio Dec. 28, 2016), a Mexican marriage certificate was held not to be an enforceable premarital agreement because it was not signed by both parties — expert testimony about foreign law could not cure the defect. And under § 4.005, after marriage the agreement “may be amended or revoked only by a written agreement signed by the parties.” Handshake modifications do not exist.

The gray zone: lifestyle and behavior clauses

Infidelity penalties, weight clauses, in-law visitation limits, social media restrictions — clients ask about all of them. Section 4.003(a)(8) does reach “personal rights and obligations,” so these terms are not categorically forbidden. But there is no reported Texas decision enforcing a lifestyle penalty in a premarital agreement, and any such clause has to survive both the public policy limit and the reality that Texas is a no-fault divorce state.

Our candid advice is that these provisions belong in a conversation, not a contract. At best they are unenforceable surplusage; at worst, a clause a court views as punitive colors its reading of the entire agreement.

Spousal support: what you are actually waiving

Section 4.003(a)(4) permits “the modification or elimination of spousal support,” and waivers are common. It is worth understanding precisely what is being given up.

Court-ordered spousal maintenance in Texas is already narrow. Under § 8.051, a court may order maintenance only if the spouse seeking it will lack sufficient property to provide for their minimum reasonable needs and one of several grounds applies — a recent family violence conviction, an incapacitating physical or mental disability, a marriage of ten years or longer combined with an inability to earn enough for minimum reasonable needs, or custody of a child of the marriage requiring substantial care because of a disability. Section 8.054 then caps duration in most cases at five, seven, or ten years depending on the length of the marriage.

Two points follow. First, a maintenance waiver forfeits a limited and hard-to-qualify-for entitlement, not the open-ended alimony readers may picture from other states. Second — and this surprises people — Texas did not adopt the Uniform Premarital Agreement Act’s public assistance safety valve. The uniform act allows a court to order support notwithstanding a waiver if the waiver would leave a spouse eligible for public assistance. That provision appears nowhere in § 4.006. In Texas, a valid waiver holds. The real exposure it closes off is the indefinite maintenance available under § 8.054(b) to a disabled spouse or the custodian of a disabled child.

Say it precisely, or lose it

Texas courts interpret premarital agreements like any other written contract, by their plain language. In re Marriage of I.C. & Q.C., 551 S.W.3d 119 (Tex. 2018). They also construe them narrowly in favor of the community estate, and will not rewrite or add to the contract’s language. Jimenez v. Jimenez, No. 01-23-00087-CV (Tex. App.—Houston [1st Dist.] Apr. 22, 2025).

The consequence is that silence defaults to community. In McClary v. Thompson, 65 S.W.3d 829 (Tex. App.—Fort Worth 2002, pet. denied), an agreement that did not address contributions made to a retirement plan during the marriage could not convert them to separate property. If you want a result, the document has to say so.

If you are weighing what belongs in your agreement — and what is better left out — our firm can help you draw the line where Texas law actually draws it. Schedule a consultation with Bustos Family Law PLLC.

Authorities Cited in This Post

Every link below was verified to resolve to the cited authority. Statutory links go to public.law; case links go to Justia, FindLaw, CourtListener, or the Texas courts website.

This article is provided for general educational purposes by Bustos Family Law PLLC and is not legal advice. Reading it does not create an attorney-client relationship. Texas marital property law is fact-specific, and statutes and case law change. Please consult a licensed Texas attorney about your own circumstances.