Faget v. Faget

53 So. 3d 414 (La. 2010)



The partition described in La. Civ. Code Ann. art. 2336 permits spouses to transform community property into separate property, and their separate property into community property via La. Civ. Code Ann. art. 2343.1, either in whole or in part, and does not require judicial approval for doing so.


The deceased husband and the wife married in 1977, a second marriage for both, and both had adult children; they signed an agreement whereby all of their property remained separate. The husband suffered a stroke in 1992. While in the hospital, the husband and wife executed a contract which purported to make the family home and its furnishings community property. Petitioner administratrix filed a revendicatory action against respondent, the deceased's surviving wife, seeking to have the succession declared the full owner of a residence. The administratrix argued that the agreement modified the marital regime from a contractual regime to a partly contractual and partly legal regime, which required court approval under La. Civ. Code Ann. art. 2329. She also argued that the husband was incompetent at the time of the agreement. The parties filed motions for summary judgment. The trial court granted the wife's motion; the administratrix appealed. The court of appeal reversed. The wife appealed. The court reversed the judgment of the court of appeal and reinstated the trial court's judgment.


Did the court of appeal err in reversing a trial court judgment which declared the decedent's wife a one-half owner of the family home and its furnishings?




The court held that the heirs were estopped to challenge the husband's competency because he lived another 10 years after making the agreement and never challenged it. The court held that the contract pertained only to a single asset and amounted to a single transaction that did not govern future acquisitions. Therefore, the contract did not modify the couple's contractual regime, and judicial approval was not required. The contract fully satisfied the elements of La. Civ. Code Ann. art. 2343.1 and made the property community property.

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