Williams v. Williams

• Decision Date: 31 May 1978
• Docket Number: No. B-6738,B-6738
• Citation: 569 S.W.2d 867
• Parties: William Wesley WILLIAMS, Jr., Independent Executor, et al., Petitioners, v. Mildred Disch WILLIAMS, Respondent.
• Court: Texas Supreme Court

Page 867

569 S.W.2d 867

William Wesley WILLIAMS, Jr., Independent Executor, et al., Petitioners, v. Mildred Disch WILLIAMS, Respondent.

No. B-6738.

Supreme Court of Texas.

May 31, 1978.

Rehearing Denied July 19, 1978.

Hooper, Robinson & Moeller, Karl H. Moeller and Malcolm Robinson, Austin, for petitioners.

Charles G. Trenckmann, Austin, for respondent.

McGEE, Justice.

The question presented by this cause is whether a premarital agreement to waive the constitutional and statutory rights of a surviving spouse to a homestead and other exempt property is valid. The trial court held such an agreement to be valid. The court of civil appeals reversed the judgment. 548 S.W.2d 492. We reverse the judgment of the court of civil appeals and affirm that of the trial court.

William Wesley Williams, Sr., and Mildred Disch Lawrence were married on September 9, 1973. Both parties had children by previous marriages and both brought substantial property into this marriage. Four days before their marriage, the parties executed a premarital agreement. The basic agreement containing the provisions relative to the waiver of the homestead right and right to have exempt property set aside to the survivor provided:

"Whereas the parties desire that all property now owned or hereafter acquired by each of them shall, for testamentary disposition, be free from any claim of the other that may arise by reason of their contemplated marriage,

"It is therefore agreed:

"1. Property to be separately owned. After the solemnization of the marriage between the parties, each of them shall separately retain all rights in his or her own property, whether now owned or hereafter acquired, and each of them shall have the absolute and unrestricted right to dispose of such separate property, free from any claim that may be made by the other by reason of their marriage, and with the same effect as if no marriage had been consummated between them."

A supplemental agreement was simultaneously executed and incorporated into the basic agreement. It disclosed the properties that each spouse would bring into the marriage, set forth certain guidelines concerning living and other incidental expenses to be incurred during the marriage, and further provided "5. All income from the separate estate of each party, including dividends, interest, rents and salaries, and any increases, sales proceeds, reinvestments or changes in said separate estate, shall remain under control of the party receiving the same and shall be deposited in such party's separate account. It is the intent of the parties that such income, except for the personal living expenses hereinabove set forth, shall remain the separate property of each party."

The marriage lasted but 141 days. Shortly after the parties were married, Mr. Williams became ill and died on January 29, 1974. He died testate and his sole devisees were his children, William Wesley Williams, Jr. and Geneva W. Canion, who are the petitioners in this cause. Approximately one year after the death of their father, and relying on the executed premarital agreement, they requested possession of the residence, the household furnishings therein, and a 1971 Chrysler automobile. It is undisputed that the property sought had been the separate property of the deceased and had been devised to the petitioners. Mildred Williams refused to abide by the premarital agreement, choosing instead to claim her rights as a surviving spouse. Tex.Const. art. XVI, § 52; Tex.Prob.Code Ann. §§ 271, 272, 284 (1956).

As a result of Mrs. Williams' refusal to vacate the property, the children filed this suit for declaratory judgment. The case was withdrawn from the jury and the trial court rendered judgment in favor of the children. The trial court held that the portion of the premarital agreement by which Mrs. Williams relinquished her constitutional and statutory rights to the homestead was valid and binding on her. The court then ruled that the agreement was void to the extent that it provided that income or other property acquired during marriage should be the separate property of the party who earned or whose property produced such income or acquisition. But the trial court held that the valid and void provisions of the agreement were severable and ordered that the children recover possession of the residence, all personal property belonging to their father at the time of his death, and the Chrysler automobile.

Article XVI, section 52 of the Texas Constitution provides that the homestead shall not be partitioned among the heirs of the deceased during the lifetime of the surviving husband or wife, or so long as the survivor may elect to use or occupy the same as a homestead. ¹ This is sometimes referred to as the probate homestead. O. Speer, Texas Family Law § 36:62, at 208 (5th ed. 1977). This homestead right of the survivor has been held to be one in the nature of a legal life estate or life estate created by operation of law. See Sparks v. Robertson, 203 S.W.2d 622 (Tex.Civ.App. Austin 1947, writ ref'd); White v. Blackman, 168 S.W.2d 531 (Tex.Civ.App. Texarkana 1942, writ ref'd w. o. m.); Petrus v. Cage Bros., 128 S.W.2d 537 (Tex.Civ.App. San Antonio 1939, writ ref'd); Comment, The Widow's Exemption in Texas, 25 Baylor L.Rev. 346, 347 (1973). The Probate Code requires that the probate homestead and certain exempt personal property ² be set aside to the surviving spouse. Tex.Prob.Code Ann. §§ 271, 272, 283, 284 (1956). These rights are provided by law for the protection of the family and to secure a home for the surviving spouse. Therefore, we must decide whether these rights may be waived by a premarital agreement.

The statutory authorization for premarital agreements in Texas is section 5.41 Mrs. Williams argues that the policy of the law favoring the security of the widow by preventing an improvident relinquishment of the homestead, or other similar rights, is paramount to the policy of the law favoring flexibility in premarital agreements. Decisions from Kansas and North Dakota support this view. In re Neis' Estate, 170 Kan. 254, 225 P.2d 110 (1950); Swingle v. Swingle, 36 N.D. 611, 162 N.W. 912 (1917). The weight of authority and the better rule, however, allows the premarital waiver of these rights. See, e. g., Smith v. Tang, 100 Ariz. 196, 412 P.2d 697 (1966); In re Howe's Estate, 81 Cal.App.2d 95, 183 P.2d 329 (Dist.Ct.App.1947); In re Scwartz's Estate, 79 Cal.App.2d 308, 179 P.2d 868 (Dist.Ct.App.1947); In re Estate of Taylor v. United States National Bank, 248 Or. 538, 436 P.2d 256 (1968); In re Estate of Moore, 210 Or. 23, 307 P.2d 483 (1957); In re Schwarzwalter's Estate, 47 Wash.2d 119, 286 P.2d 699 (1955); Annot., 65 A.L.R.2d 727 (1959) and other cases cited therein.

of the Family Code. ³ This statute should be construed as broadly as possible in order to allow the parties as much flexibility to contract with respect to property or other rights incident to the marriage, provided the constitutional and statutory definitions of separate and community property or the requirements of public policy are not violated. See generally O. Speer, Texas Family Law § 16:5, at 192 (5th ed. 1976); McKnight, Commentary to the Texas Family Code, Title 1, 5 Tex.Tech.L.Rev. 281, 374-76 (1974).

Furthermore, the premarital agreement in question does not violate the public policy of this state. The parties to the agreement were mature individuals. There was no suggestion of fraud, overreaching, or a lack of understanding. Full disclosure was made of the nature and extent of the property interests involved. Both parties had substantial separate property which they desired to preserve for themselves. There were no interests of any minor children to protect. Viewing this agreement in light of these facts and circumstances, as well as the underlying purpose of the transaction, we are of the opinion that neither party would be adversely affected by the premarital agreement.

Mrs. Williams also contends that article XVI, section 52 of the Texas Constitution, in effect, prohibits the premarital agreement now before us. This contention, however, is based on an incorrect interpretation of section 52. While a "surviving" spouse is granted the right to occupy the homestead by section 52, such language is not to be construed as a constitutional prohibition to a waiver of that right by prospective spouses. Therefore, we hold that Mrs. Williams waived her rights to the probate homestead and exempt property by the premarital agreement in question.

The trial court correctly concluded that the agreement was void to the extent that income or other property acquired during marriage should be the separate property of the party who earned or whose property produced such income or acquisition. Such provisions were no more than a mere agreement between the parties to establish the character of the property prior to its acquisition during marriage in violation of both the Texas Constitution and the Family Code, Tex.Const. art. XVI, § 15; Tex.Family Code Ann. § 5.01 (1975); See Gorman v. Gause, 56 S.W.2d 855 (Tex.Comm'n App.1933, jdmt. adopted); Arnold v. Leonard, 114 Tex. 535, 273 S.W. 799 (1925); Hilley v. Hilley, 161 Tex. 569, 342 S.W.2d 565 (1961). Mrs. Williams contends that the entire agreement is vitiated by these void provisions. On the assumption that the provisions in question constituted part of the consideration for the agreement, she asserts that when a contract is based upon several considerations, one or more of which is illegal We are of the opinion that the agreement here is controlled instead by the rule that where the consideration for the agreement is valid, an agreement containing more than one promise is not necessarily rendered invalid by the illegality of one of the promises. In such a case, the invalid provisions may be severed and the valid portions of the agreement upheld provided the invalid provision does not constitute the main or...