5.3 Marriage and Community Property
Key Takeaways
- The legal (default) matrimonial regime in Louisiana is community of acquets and gains; property acquired during marriage is presumed community.
- Separate property is owned before marriage or acquired during marriage by inheritance or donation to one spouse individually.
- Concurrence of both spouses is required to alienate, encumber, or lease a community immovable (CC art. 2347); a transfer without it is relatively null.
- A matrimonial agreement (marriage contract) altering the regime must be made by authentic act.
- Every deed should state marital status and the community or separate character of the property so the notary knows who must sign.
The Default: Community of Acquets and Gains
Unless spouses sign a contract saying otherwise, Louisiana marriages are governed by the legal regime known as the community of acquets and gains. Under it, most things acquired during the marriage — wages, property bought with community funds, and their fruits — are community property owned equally by both spouses, regardless of whose name is on the title or paycheck.
Community vs. Separate Property
| Classification | How it arises | Owner |
|---|---|---|
| Community | Acquired during marriage with community effort or funds | Both spouses, equally |
| Separate | Owned before the marriage | The individual spouse |
| Separate | Acquired during marriage by inheritance or donation to one spouse | The individual spouse |
| Separate | Bought with separate funds and properly declared | The individual spouse |
Fruits of separate property (e.g., rent from a spouse's premarital rental house) are community by default unless that spouse files a written declaration of paraphernality reserving them as separate.
The Presumption of Community
If a person is married and a deed does not state the contrary, property acquired during the marriage is presumed community — and because both spouses own a community immovable, both must sign to transfer it.
To overcome the presumption and take title as separate, a married buyer must include a double declaration in the act: that the property is acquired with separate funds and for the buyer's separate estate.
Concurrence — When Both Spouses Must Sign (CC art. 2347)
The concurrence of both spouses is required to alienate, encumber, or lease a community immovable. A transaction missing that concurrence is relatively null, meaning the non-signing spouse can attack it — even as to the signing spouse's own half interest.
| Transaction on a community immovable | Both signatures required? |
|---|---|
| Sale | Yes |
| Mortgage / encumbrance | Yes |
| Donation | Yes |
| Lease | Yes (CC art. 2347) |
Note: the Civil Code caps any lease term at 99 years (CC art. 2679); a longer stated term is reduced to 99.
Proper Recitals in a Deed
| Status | Sample recital |
|---|---|
| Single | "John Smith, a single person who has never been married" |
| Married, community | "John Smith and Jane Doe Smith, married to each other" |
| Married, separate | "John Smith, married to Jane Doe Smith, acquiring with separate funds as his separate property" |
| Widowed | "John Smith, surviving spouse of and never remarried since the death of Jane Doe Smith" |
| Divorced | "John Smith, divorced from Jane Doe and not since remarried" |
Matrimonial Agreements (Marriage Contracts)
Couples may opt out of community using a matrimonial agreement.
| Aspect | Rule |
|---|---|
| Form | Authentic act (notary + two witnesses) |
| When | Before marriage, or during marriage with court approval if after the wedding |
| Effect | Can establish a separate-property regime or modify community |
| Third persons | Must be recorded to affect third persons |
Termination of the Community
| Event | Effect |
|---|---|
| Death of a spouse | Decedent's half passes through succession; survivor keeps their half |
| Divorce | Community ends retroactive to filing; partition follows |
| Judgment of separation of property | Terminates the community |
| Matrimonial agreement during marriage | Terminates/modifies per the agreement |
Worked Scenario and Traps
A husband alone signs an act selling the family home, titled in his name, bought during the marriage. Because it is presumed community, the wife's concurrence was required; the sale is relatively null and she can rescind it. The notary's fix when one spouse is absent is to obtain a written mandate (power of attorney) from the absent spouse authorizing the act.
Common Traps
- Assuming title in one spouse's name alone means separate property — during marriage it is presumed community.
- Forgetting that the non-signing spouse can void even the signing spouse's half.
- Treating an oral marriage contract as valid — it must be an authentic act.
Classifying a Specific Asset: A Quick Decision Path
When a married client brings in property, the notary asks, in order:
- When acquired? Before marriage → separate. During marriage → presumed community.
- How acquired? By inheritance or donation to one spouse → separate even if during marriage.
- With what funds? Separate funds plus a proper double declaration → separate; otherwise community.
- Any matrimonial agreement? A recorded authentic-act agreement may override the default.
| Fact pattern | Classification |
|---|---|
| House bought five years before the wedding | Separate |
| Land inherited from a parent during marriage | Separate |
| Home bought during marriage with joint paychecks | Community |
| Rental income from a spouse's premarital house, no paraphernality declaration filed | Community (fruits) |
Practical Notary Checklist for a Married Signer
| Situation | What the notary must do |
|---|---|
| Both spouses present | Take the signature of both on the community immovable |
| One spouse absent | Obtain a written mandate (power of attorney) from the absent spouse before signing |
| Status unclear | Verify marital status and the source of funds before drafting |
| Title held in one name | Do not assume separate — confirm the community/separate character |
A notary who lets only one spouse sign a sale of a community home has created a relatively null act; the omission is the single most common community-property error on the exam.
Worked Example: The Double Declaration
A married woman wants to buy a lot with money she inherited and keep it separate. The notary drafts a recital that she acquires "with her separate funds and for her separate estate." Without both statements, the lot would be presumed community despite the inheritance source. With them, the act overcomes the presumption and the husband's concurrence is not needed to later sell it.
On the Exam
- Default regime: community of acquets and gains.
- Acquired during marriage = presumed community.
- Both spouses must concur to sell, mortgage, donate, or lease a community immovable (art. 2347); missing concurrence = relatively null.
- Separate acquisition during marriage needs the double declaration (separate funds + separate estate).
- Matrimonial agreement must be an authentic act.
A married person buys a house during the marriage, and the deed says nothing about separate or community status. Under Louisiana law, the property is:
A husband alone signs an act mortgaging a community immovable; his wife never signs. The mortgage is: