Sep Prop Flashcards
Sep Prop
1) owned or claimed by a spouse prior to marriage
2) prop acquired during marriage by death, devise, or descent
3) the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.
TX presumption
- all prop possessed by a spouse upon cessation of marriage (death or divorce) is community property
- rebut by clear and convincing evidence
- parties can also alter this by agreement
Com Prop
-any property acquired during the marriage that is not separate property
income during marriage
- earnings from employment during the marriage belong to the community estate
- consideration for services performed during marriage, whether in the form of time or toil, is considered CP
gifts between spouses
-when one spouse gives a gift to the other spouse during the marriage, any income from the gift is presumed to be separate property
income from sep prop
- interest and dividends earned on separate prop are community based on the TX rule of implied exclusion
- if not defined as sep, implication is com
inception of title
-enforceable right acquired prior to marriage, but exercised during marriage, relates back to its inception and is separate prop
tracing
if there is a CP presumption, it can be overcome by tracing the prop back to assets that were owned prior to marriage (Sep)
commingled prop
-tracing sep can overcome presumption of commingled if they are properly documented
identical sum inference
- also called cleaning house method
- arises when there is a deposit of separate property and the same amount is withdrawn shortly after
community out first doctrine
- if there are CP funds in the account, there is a presumption that those funds are withdrawn first
- look at intent to over come presumption
lowest intermediate balance
- also called minimum sum balance
- sep funds placed in a commingled account drop to the “bottom” of the account
- that amount is the fixed min amount in the account that is known to be sep prop
