Marital Agreements and Estate Planning: How They Work Together

If you are entering a marriage or remarriage with significant assets, children from a prior relationship, business interests, inherited property, or a clear vision for your legacy, you may have been told that you need a will, a trust, or a marital agreement. These documents are often discussed together, but they serve different purposes. Treating one as a substitute for another can leave serious gaps in your planning that may not be discovered until it is too late to correct them.

More Americans are entering marriage with retirement accounts, real estate, business interests, inheritances, and blended family responsibilities. As a result, the relationship between marital agreements and estate planning has become increasingly important. A well-designed plan should address not only who receives your assets at death but also what rights a spouse may have during life, upon divorce, or after death. Understanding what each document does, where the law may override even a carefully drafted will or trust, and when a marital agreement and estate plan need to work together is essential to protecting both your loved ones and your intended legacy.

What Wills and Trusts Are Designed to Do

When a married couple wants to ensure that their property passes according to their wishes, a will or trust can identify who should receive property, when they should receive it, and how it should be managed or distributed. A trust can offer additional benefits by helping manage property if either spouse becomes incapacitated (unable to manage their affairs) and by allowing trust-owned assets to avoid the court-supervised probate process at death.

For many couples, a will or trust may be sufficient when the couple’s wealth was accumulated together, both spouses share the same intended beneficiaries, and the primary beneficiaries are children of the marriage. In those circumstances, traditional estate planning documents can often accomplish the couple’s goals without the need for a separate marital agreement.

When a Will or Trust May Not Be Enough

In some situations, a will or trust alone may not be enough to fully carry out a married person’s wishes. For example, one spouse may bring significant separate assets into the marriage and want those assets to pass to someone other than the surviving spouse, such as children from a prior relationship, other family members, or a charity.

However, your will or trust does not operate in a vacuum. Every state has laws designed to protect a surviving spouse from being completely disinherited—and those laws can override your estate planning documents in surprising ways.

Community Property States Such as Texas

Community Property Issues and Homestead Rights

Unlike many common law states, Texas does not have an "elective share" statute. Instead, Texas is a community property state, meaning the law uses a different mechanism to protect surviving spouses—one that presents its own set of challenges for estate planning.

How Texas Community Property Rules Affect Your Estate Plan

Under Texas law, all assets acquired during a marriage are presumed to be community property, which is owned 50/50 by both spouses. You cannot use a will or trust to pass along your surviving spouse’s half of community property; your estate plan can only direct your own 50% share, along with your separate property (assets owned before marriage or acquired through gift or inheritance).

Crucially, Texas law also dictates that income generated from separate property during a marriage—such as rental income, business profits, or investment dividends—becomes community property unless steps are taken to prevent it. Without proper planning, separate assets can quickly create community property claims, entangling inheritances or business interests intended for children from a prior relationship.

Spousal Rights That Override a Will in Texas

Even if an asset is strictly your separate property, Texas grants a surviving spouse broad constitutional and statutory protections that override instructions in a will or trust:

• Lifetime Homestead Rights: Under the Texas Constitution, a surviving spouse has an absolute right to occupy the marital homestead for the rest of their life. This applies even if the home was your sole separate property and your will explicitly leaves it to your children from a previous marriage. Your children cannot force the surviving spouse to leave, sell, or pay rent.
• Family Allowance and Exempt Property: A surviving spouse can claim a statutory allowance from the estate for maintenance and support during administration, as well as the right to use certain exempt personal property.

How a Texas Marital Agreement Fills the Gap

Because these protections are anchored in state law and the Texas Constitution, a standard will or trust cannot revoke them on its own. A properly executed premarital agreement or partition and exchange agreement (postnuptial) is necessary to customize these rules.

In Texas, a marital agreement allows spouses to:

1. Waive Homestead Rights: Waive or limit the surviving spouse's constitutional right to occupy separate property real estate after death, ensuring the property passes cleanly to intended heirs like children from a prior marriage.
2. Keep Separate Income Separate: Agree that income, interest, and dividends earned from separate assets remain separate property rather than becoming community property.
3. Partition Community Property: Define exactly how property and debts will be characterized, preventing unintended community claims against family businesses or inherited accounts.

States that Use an Elective Share

While community property regimes like Texas rely on 50/50 asset ownership created during marriage, most states operate under common law systems that protect surviving spouses through a completely different legal mechanism: the elective share. In non-community property jurisdictions like Florida, these statutory rules prevent one spouse from unilaterally disinheriting the other, regardless of how individual assets are titled or what instructions are left in a will or trust.

Understanding Elective Share Rights

To understand why, consider a scenario that courts and legislatures have long recognized as a potential injustice: One spouse spends decades raising children, managing the household, and supporting the family while the other spouse earns income and accumulates wealth. Yet because most of the property is titled only in the income-earning spouse’s name, the at-home spouse may have little or no direct ownership interest in those assets. If the income-earning spouse then signs a will leaving everything to someone else, such as a new romantic partner if you are separated but not yet divorced, the surviving spouse could be left with almost nothing.

Elective share laws exist to prevent that kind of result. These laws give a surviving spouse the right to claim a portion of the deceased spouse’s estate, even if the deceased spouse’s will or trust says otherwise. The exact amount and the assets included in the calculation vary significantly by state, but the underlying policy is generally the same: A married person usually cannot completely disinherit a surviving spouse without that spouse’s consent.

When Elective Share Laws Work Against Your Wishes

Elective share statutes can also create difficult outcomes in the opposite direction. Consider a person who was raised in an orphanage or children’s home and, out of gratitude, spent much of their life planning to leave their home and savings to the organization that had cared for them. Later in life, that person marries someone who has substantial income and assets of their own. The couple discusses the plan, and both verbally agree that the charitable gift should remain in place.

When the person dies, however, the surviving spouse changes their mind and files an elective share claim against the estate. Even though the will clearly directs the property to the charitable organization, the surviving spouse’s statutory rights may override those instructions and divert a significant portion of the estate away from the intended gift.

That result may be very different from what the deceased spouse intended. But a verbal understanding is usually not enough to waive a surviving spouse’s legal rights. Without a properly drafted written marital agreement addressing those rights in advance, the estate plan may not be able to fully protect the intended beneficiary.

How a Marital Agreement Fills the Gap

A marital agreement, commonly executed before marriage as a prenuptial agreement (though postnuptial agreements signed after marriage serve a similar purpose), can address exactly the types of situations described above. At its core, a marital agreement is a contract between two people who are planning to marry (or are already married) that defines how property will be owned throughout the marriage and what rights each spouse has to the other’s property in the event of both death and divorce.

What a Marital Agreement Actually Covers

A well-drafted marital agreement typically addresses the following:

• The nature and extent of the property each spouse is bringing into the marriage
• How that property will be divided if the couple divorces or one spouse dies during the marriage
• The extent to which each spouse may give their property to children from a prior relationship, to charities, or to other beneficiaries through their estate plan
• The waiver of certain rights, including elective share rights or rights to primary residences, that would otherwise automatically apply under state law

Why would a spouse voluntarily give up an elective share right? There can be several legitimate reasons. In many cases, both spouses want clarity about what will remain separate and what will be shared. One spouse may agree to waive rights in certain separate property in exchange for the other spouse making a similar waiver. This decision can be especially important in a remarriage, where each spouse may want to protect children from a prior relationship, inherited assets, family business interests, or long-standing charitable commitments.

In other situations, particularly when significant family wealth or business interests are involved, a marital agreement may be necessary before the marriage can move forward. Rather than being viewed as a lack of trust, the agreement can provide transparency and certainty for both spouses by clearly defining what each person is entitled to, what each person is giving up, and how their respective estate plans should operate.

Can a Marital Agreement Be Changed Later?

A marital agreement does not permanently lock either spouse into a fixed arrangement. Both spouses can reserve the right to leave property to each other through gifting or subsequent estate planning—through a will or a trust—meaning that a marital agreement does not require either spouse to forever waive all claims to the other’s separate property. If circumstances change, and both spouses agree, a marital agreement can be renegotiated.

Ultimately, a marital agreement allows someone who is planning to marry or who is already married to resolve the uncertainty surrounding property rights that often accompanies marriage—and the legal rights that automatically attach to married couples under state law.

Should You Consider a Marital Agreement?

A marital agreement deserves serious consideration if any of the following apply to your situation:

• You are marrying or remarrying and want to keep your finances or specific assets separate from your spouse’s.
• You want to ensure that your estate plan is not disrupted by the legal rights your new spouse is automatically entitled to upon your death.
• You want to ensure that your property passes to your children, to a charity, or to someone other than your spouse when you die.
• You want to spell out exactly what property you will give your spouse (or what you will receive from them) if you divorce.
• You and your spouse each want to be protected from the other’s individual debts, such as business debts or student loans.
• You want to clearly define who is responsible for what—financially, legally, or otherwise—during the marriage.

Wills, trusts, and marital agreements are not competing documents. They are complementary tools that work best when designed together. A will or trust states what you want to happen to your property. A marital agreement defines the legal framework within which those wishes can actually be honored.

Anyone entering a marriage with individual assets, children from a prior relationship, a family business, or a specific charitable legacy in mind should understand how these documents interact in an effective estate plan. Getting them right and ensuring that they work in concert is exactly the kind of guidance your estate planning attorney can provide. Call today to learn more.