In re Succession of Faget

2008-2422 ( La. App. 1 Cir 12/23/09), 30 So. 3d 796



A matrimonial regime is a system of principles and rules governing the ownership and management of the property of married persons as between themselves and toward third persons. La. Civ. Code Ann. art. 2325. A matrimonial regime may be legal, contractual, or partly legal and partly contractual. La. Civ. Code Ann. art. 2326. The legal regime is the community of acquets and gains. La. Civ. Code Ann. art. 2327. In a community of acquets and gains regime, each spouse owns a present undivided one-half interest in the community property. La. Civ. Code Ann. art. 2336. A matrimonial agreement is a contract establishing a regime of separation of property or modifying or terminating the legal regime. Spouses are free to establish by matrimonial agreement a regime of separation of property or modify the legal regime as provided by law. The provisions of the legal regime that have not been excluded or modified by agreement retain their force and effect. La. Civ. Code Ann. art. 2328.


A trial court granted partial summary judgment in favor of a decedent's second wife in a consolidated matter to open the decedent's succession and for a revendicatory action. The trial court declared the second wife to be the owner of one-half of the family residence and furnishings, as a usufructuary for life over the remaining one-half of the immovable property and its furnishings with the children being the naked owners of the remaining one-half, subject to the usufruct. Prior to their marriage, the decedent and the second wife entered into a matrimonial agreement in which they agreed to remain separate in property. Later, without prior court approval, they entered into a residence agreement expressing an intent and desire to treat the family home and its furnishings as community property, but all other assets were to remain separate property. The children of the decedent appealed from a judgment.


Was the residence agreement valid?




The Court held the residence agreement sought to establish a mixed regime and prior court approval was necessary for the modification as required by law. Consequently, the residence agreement did not meet the requirements necessary for a matrimonial agreement to be valid as set forth in art. 2329. Additionally, the residence agreement was not a donation because there was no existing legal regime. Accordingly, the trial court erred in granting summary judgment in favor of the second wife.

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