SMITH & GARG, LLC

By the Estate Planning Attorneys at Smith & Garg, LLC, serving The Woodlands, Spring, Houston, Conroe, Humble, Kingwood, Tomball, Cypress, Huntsville, Westchase, Southwest, Sugar Land, West Oaks, Alief, Memorial, River Oaks, Stafford, Katy, Missouri City. Sugarland, Richmond, Alief and other surrounding areas in North, Northwest, South and Southwest Houston.

The Texas Family Code section 4.201 states that “At any time, spouses may agree that all or part of the separate property owned by either or both spouses is converted to community property.” The agreement to convert community property to separate property must be in writing and signed by both spouses. The agreement must also identify the property to be converted and specify that the property is being converted to the spouses’ community property. The agreement does not need consideration to be enforceable. Simply putting separate property in the name of the other spouse is insufficient to convert the property to community property.

Section 4.205 of the Texas Family Code deals with the enforcement of the community property agreement. In essence, the agreement is unenforceable if the party against whom the enforcement is sought can show that he or she 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.” This code section also sets forth specific language that, if inserted into the agreement, provides a rebuttable presumption that “fair and reasonable disclosure” of such legal effect has occurred. 

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