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Faget v. Faget - 53 So. 3d 414, 2010 La. LEXIS 2607, 2010-0188 (La. 11/30/10)


La. Civ. Code Ann. art. 2329 permits spouses to enter into matrimonial agreements before or during marriage as to all matters that are not prohibited by public policy.


Dr. William Faget married Audrey Menary and prior to the marriage, they entered into a matrimonial agreement establishing a contractual matrimonial regime. William had a stroke and while in the hospital, William and Audrey executed a contract to make the family home and its furnishings community property. This contract provided that in the event of the death of either party, that individual’s 50% interest in the residence and all furnishings is to be inherited by that individual’s children. After William’s death, his three children filed a petition to open the succession and the independent administratrix filed a petition for a revendicatory action against Audrey, seeking to have the succession declared full owner of the resident and furnishings, and to compel Audrey to account for and deliver the property. Audrey filed a partial motion for summary judgement but the children filed a cross-motion, asserting the Resident Agreement was invalid for three reasons: (1) William lacked capacity to enter into the agreement; (2) there was no court approval to modify the regime; and (3) the language of the agreement was precatory.


Does a single asset modify a regime so as to trigger the need for court approval under Louisiana Civil Code and must a community regime exist in order for a separate asset to be transformed into community property pursuant to Louisiana Civil Code?


No and no.


The court reversed the judgment of the court of appeal and reinstated the trial court judgement because they found the agreement at issue was enforceable without judicial approval and the existence of a community property regime is not a prerequisite to the applicability of the Louisiana Civil Code. The Court found that William had the capacity to enter into the agreement. He also did not challenge its validity in the next 10.5 years that he lived. Further, the court held that judicial approval is not necessary because to hold that spouses can subject the entirety of their estate to the legal regime without court approval via the LA Civil Code but they must obtain court approval to subject a specific asset to the legal regime is nonsensical, therefore the Residence Agreement is enforceable Additionally, the legislature’s act of allowing spouses to contractually transform their community property into separate property and their separate property into community property as stated in the LA Civil Code evidences intent to allow spouses to voluntarily classify individual assets as they so desire. The Residence Agreement is enforceable as it does not operate as a matrimonial agreement that modified for terminated a matrimonial regime, requiring judicial approval.

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