Surplusage definition
Surplusage may appear in a marital agreement. In Dokmanovic ▇. ▇▇▇▇▇▇▇, 880 S.W.2d 272, 273 (Tex. App.-Houston [14th Dist.] 1994, no writ), for example, the parties‟ premarital agreement provided, among other things: Separate property increases, income, or proceeds which the law of Texas classifies as separate property shall remain the separate property of the owner of the separate property producing the increase, income, or proceeds; and All income of the separate property of each party shall be treated as the separate property of the party owning the separate property producing the income. All earnings for personal services of each party shall be treated as the separate property of the party earning the income. In upholding the validity of the agreement, the Houston Fourteenth Court of Appeals noted that, although the agreement also contained an additional sentence indicating an intent to partition income in the future, such provision provided merely “an alternative and unnecessary method for recharacterizing community property as separate property,” because the agreement had previously accomplished the purpose of exchanging property interests without the need to execute additional agreements. Id. at 275. In other words, the provision regarding an intent to partition in the future was, in effect, surplusage. Assume that a premarital agreement effects a partition and exchange. Assume also that the agreement states that the parties‟ will reaffirm the agreement five years after the date of its original execution. Assume finally that the parties‟ never reaffirm the agreement. What is the effect of the parties‟ failure to reaffirm? Arguably, under Dokmanovic, there is no effect. The parties‟ original agreement effected a partition and exchange, without the need to execute additional agreements. The reaffirmation provision is surplusage, unnecessarily providing an alternative method to accomplish the intent of the parties.
Surplusage means words or phrases that are unnecessary or lack meaning. (Reno v. Baird (1998) 18 Cal.4th 640, 657.) The words must be construed in order to achieve a reasonable and commonsense interpretation when viewed in context and in light of the