HBA-SEB H.B. 734 76(R)    BILL ANALYSIS


Office of House Bill AnalysisH.B. 734
By: Goodman
Juvenile Justice and Family Issues
2/18/1999
Introduced



BACKGROUND AND PURPOSE 

Currently, a person who is married or about to marry is authorized to enter
into a marital agreement converting community property to separate
property, but spouses cannot convert separate property to community
property.  Upon death, separate property is taxed more heavily by the
federal government than community property.  H.B. 734 authorizes spouses to
agree to convert separate property to community property.   

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that this bill does
not expressly delegate any additional rulemaking authority to a state
officer, department, agency, or institution. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Chapter 4, Family Code, by adding Subchapter C, as
follows: 

SUBCHAPTER C.  AGREEMENT TO CONVERT SEPARATE PROPERTY 
TO COMMUNITY PROPERTY

Sec. 4.201.  DEFINITION.  Provides that "property" has the meaning assigned
by Section 4.001 (Definitions):  an interest, present or future, legal or
equitable, vested or contingent, in real or personal property, including
income and earnings. 

Sec. 4.202.  AGREEMENT TO CONVERT TO COMMUNITY PROPERTY.  Authorizes
spouses to agree at any time that all or part of the separate property
owned by either or both spouses is converted to community property. 

Sec. 4.203.  FORMALITIES OF AGREEMENT.  Establishes that an agreement to
convert separate property to community property is enforceable without
consideration and must identify the converted property, specify that the
property is being converted to community property, and be in writing and
signed by both spouses.  Provides that the mere transfer of a spouse's
separate property to the name of another spouse or to the name of both
spouses is not sufficient to convert the property to community property. 

Sec. 4.204.  MANAGEMENT OF CONVERTED PROPERTY.  Provides that property
converted to community property under this subchapter is subject to the
sole management, control, and disposition of the spouse in whose name the
property is held or the spouse who transferred the property if the property
is not subject to evidence of ownership, or the joint management, control,
and disposition of the spouses if the property is held in the name of both
spouses or is not subject to evidence of ownership and was owned by both
spouses before the property was converted to community property.  Provides
exceptions to this section if the agreement to convert the property
specifies otherwise and as provided by Subchapter B, Chapter 3 (Management,
Control, and Disposition of Marital Property), and other law. 

Sec. 4.205.  ENFORCEMENT.  Establishes that an agreement to convert
property to community property is not enforceable if the spouse against
whom enforcement is sought  proves that the spouse did not execute the
agreement voluntarily or did not receive a fair and reasonable disclosure
of the legal effect of converting the property to community property.
Provides that when a specific statement or a substantially similar
statement is used in an agreement, the statement is rebuttably presumed to
give a fair and reasonable disclosure of the conversion of property to
community property if the wording is placed in conspicuous print on the
same page as the signature of the spouses.  Provides the wording for such a
statement regarding exposure to creditors, loss of management rights, and
loss of property ownership.   

Sec. 4.206.  RIGHTS OF CREDITORS; RECORDING.  Establishes that a conversion
of separate property to community property does not affect the rights of a
preexisting creditor of the spouse whose separate property is being
converted.  Authorizes a property conversion to be recorded in the deed
records of the county in which a spouse resides and of the county in which
any real property is located.  Provides that a conversion of separate
property to community property is constructive notice to a good faith
purchaser for value or a creditor without actual notice only if the
agreement to convert the property is acknowledged and recorded in the deed
records of the county in which the real property is located. 

SECTION 2.  Effective date:  January 1, 1999.  Provides that this Act takes
effect only upon the passage of the constitutional amendment proposed by
the 76th Legislature, Regular Session, 1999, relating to the conversion of
separate property to community property.  

SECTION 3.  Emergency clause.