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Community Property/Marital Property
South Texas College of Law Houston
Musselman, James L.

Marital Property
Chapter 1: The Texas Marital Property System
A       Introduction
a.      3 Marital Property Estates
                                 i.     Community Property,
                               ii.     Husband Separate Property,
                             iii.     Wife Separate Property.
b.      5 Management Roles:
                                i.     H SP he manages
                              ii.     W SP she manages
                            iii.     CP that H manages solely
                            iv.     CP that W manages solely
                              v.     CP that H/W manage jointly
c.       Start w/ Community Property Presumption (CPP), can be rebutted by clear and convincing evidence.
B       The Constitution of 1876
a.      DeBlane v. Hugh Lynch & Co.- crops produced on SP of W are CP. However, increase in land value remains SP. So if starts out $100 and appreciates to $1000 all is separate. But the proceeds from crops are community. Crops themselves are community.
b.      Doctrine of Ownerous Title- defines CP- whatever is acquired by the joint efforts of the spouses.
                                i.     Test: was it acquired by the labor of both spouses? If yes then CP. (Property is community which is acquired by the work, efforts or labor of the spouses or their agents, as income from the property, or as a gift to the community.)
                              ii.     Texas courts have adhered strictly to the doctrine that dividends, interests, rent, and other income derived from separate property of a spouse comprise community property.
                            iii.     Exception= Gifts Between Spouses. §3.005 If one spouse makes a gift of property to the other spouse, the gift is presumed to include all the income and property that may arise from that property.
c.       Stringfellow v. Sorrells- Increase in value doesn’t change the character of property. WSP mule remains SP including increase in value. The offspring of mule is CP.
d.      Doctrine of Implied Exclusion- for constitution only. Used to determine what is SP under constitution. If not specifically listed in constitution then impliedly excluded. Test: If not acquired by gift, devise, or descent then is CP. (defined in Art. 15 §16)
e.      Arnold v. Leonard- Under doctrine of implied exclusion if it is not listed as SP then it is CP. Rents and revenues from W Sep. rental property is CP. Legislature can’t change character but can change the control and management so as to exempt the property from the reach of creditors.
f.Northern Texas Traction Co. v. Hill- personal injury recovery is SP. The part of recovery for medical bills and other necessary expenses incurred is CP. (refer to Short outline, it’s very detailed.)
C       Constitution as Amended in 1948
a.      Few v. Charter Oak Fire Insurance Co.- personal injury recovery for workers comp. claim is community property b/c worker’s comp. recovery = lost wages.
b.      Graham v. Franco- The recovery awarded for personal injuries sustained by either spouse during marriage is the separate property of that spouse except for any recovery for loss of earning capacity during marriage. The acts

t persons about to marry and spouses, without the intention to defraud preexisting creditors, may by written instrument from time to time partition between themselves all or part of their property, then existing or to be acquired, or exchange between themselves the community interest of one spouse or future spouse in any other community property then existing or to be acquired, whereupon the portion or interest set aside to each spouse shall be and constitute a part of the separate property and estate of such spouse or future spouse;(3) and the spouses may from time to time, by written instrument, agree between themselves that the income of property from all or part of the separate property then owned by one of them, or which thereafter might be acquired, shall be the separate property of that spouse,(4) and if one spouse makes a gift of property to the other that gift is presumed to include all the income or property which might arise from that gift of property, (5) and spouses may agree in writing that all or part of their community property becomes the property of the surviving spouse on death of a spouse, (6) and spouses may agree in writing that all or part of the separate property owned by either or both of them shall be the spouses’ community property.
Wylie Amendment