Community Property: Income From Sp Is Cp; Altering Characterization; Challenging Cp

Front 1

* Rule: Income from SP is CP unless spouses agree otherwise in writing.

Back 1

Also, gift between spouses: income from interspousal gifted property is presumptively donee spouse's SP.

Front 2

Trust Income Interests

Back 2

Interest income can be gifted via language of trust. (thus SP)

If person has unrestricted power to withdraw principal and doesn't do so, all income thereafter is CP.

Front 3

Mineral Interests

Back 3

The only one that falls under the rule that "income from SP is CP" is delay rentals; all other payments are considered piecemeal sales of corpus and SP. Oil gas lease is treated as sale of underlying minerals.

Front 4

Corporate Distributions

Back 4

All proceeds of separate asset sale are SP, including capital gain.

Of corporation distributions, only one that falls under the rule that "income from SP is CP" is cash dividends.

Front 5

Increase from Animals **

Back 5

* Puppies are community property!

Progeny of separate property livestock birthed during marriage is CP.

Front 6

Premarital Agreements

Back 6

- must comport w/TX Constitution
- in writing signed by both parties ( no oral prenups )
- no consideration required
- may partition all or part of their property, then existing or to be acquired, or exchange between themselves the community interest of 1 spouse or future spouse in any other CP then existing or to be acquired, whereupon the portion or interest set aside to each spouse shall be and constitute a part of the SP estate

Front 7

Agreement can govern disposition of property on separation, divorce or death, including the making of a will or trust and the disposition of life insurance policies

Can waive right to homestead, exempt personal property, family allowance, and can deal w/ any matter including their personal rights and obligations

Back 7

Parties can agree that after marriage, each party's wages and salary shall be SP --> exchange

Front 8

In prenup, parties can contract on anything EXCEPT:

1) limit child support obligation
2) agree that after they marry, one spouse's SP shall be CP

Couple can convert SP to CP after marry, but not in prenup

Back 8

To set aside prenup, must establish:

1) not signed voluntarily OR
2) "unconscionable when made" AND either no fair disclosure of property or financial obligations OR right to disclosure was not waived in writing; AND no adequate knowledge of property of financial obligations

Front 9

Burden of proof on unconscionability or that party signed involuntarily is on party seeking to avoid agreement --> Matter of law to be decided by the court

Back 9

TX: "voluntarily"- pregnancy nor planning of big wedding will serve as a basis for having "involuntarily signed" a premarital agreement

Front 10

Marital Agreements

Spouses can agree in writing signed by both to convert SP into CP

Conversion agreement valid if signed by both spouses; can't just state in deed that it'll be CP. Grantees do not sign deeds!

Back 10

Disadvantages of marital agreement:

1) If marital problems, CP's 'on the table' for division
2) Some protection against creditors' claims will be lost
3) Lose power of disposition over half the property

Front 11

Spouses can make an unequal partition of CP. Partition valid against preexisting unsecured creditors unless made w/intent to defraud creditors (assuming recorded in deed records)

If partition agreement unrecorded, it's invalid as against subsequent creditors or BFPs without actual notice of agreement

* Record document in county where land is located to give notice!

Back 11

But if exchange agreement (designate one property as SP, other as SP), then it's valid.

Front 12

1987 amendment: "Spouses may agree in writing that all or part of their CP becomes property of the surviving spouse on the death of a spouse."

Survivorship agreement can be as to specific assets or apply to all CP now owned or acquired in the future.

Back 12

Requirements:
1) Must be written/signed by both spouses.
2) Either may revoke by written notice to other
3) Statute authorizes court proceeding in which, upon proof of valid agreement and that agreement wasn't revoked, court enters order adjudging agreement valid

Front 13

Palimony Agreements

Back 13

On agreement of nonmarital conjugal cohabitation; must be in writing and signed by party to be charged

Front 14

Power to Challenge CP Gifts

Spouse can make "reasonable" CP gifts as long as not so disproportionate as to be "in fraud of the spouse's community rights" [constructive fraud]

Same "fraud on spouse" test applies to CP life insurance policy. In det whether W can set aside beneficiary designation as to her 1/2 CP, consider the 'weigh the equity' factors

Back 14

Factors:
- rel of donee to donor (unrelated party, presumptively fraud)
- amount of gift in relationship to community estate
- if spouse is adequately provided for out of remaining estate
- if there are any special circumstances that justify the gift
- whether gift was of donor's sole management CP