Commentary on HB 734 and HJR 36

1999 Legislation:

Commentary on HB 734/HJR 36 -- The "Family
Harmony Bill:" Converting Separate
Property Into Community Property

Here's more information on HB 734 and HJR 36: These bills are authored by Rep. Toby Goodman, who was the chair of the House Juvenile Justice and Family Issues Committee (the committee through which all or virtually all bills amending the Family Code must go) in 1997 and is the likely chair of that committee again this session.

These bills are supported by the Texas Academy of Probate and Trust Lawyers, a group of board certified estate planning and probate lawyers interested in probate legislation. Historically, the Academy has weighed in for or against bills that others pushed -- the Academy is more flexible and can respond faster to legislative developments than the Real Estate, Probate and Trust Law Council of the State Bar of Texas.

This is the Academy's second foray into pushing its own legislation. In 1997, it tried to get a bill amending Tex. Prob. Code Sec. 241 -- executor compensation -- through, but opposition from the probate judges killed the bill.

This time around, the Academy is picking up where the Real Estate, Probate and Trust Law Council left off -- the Council has failed twice to get the approval of the State Bar Board to carry this legislation (in 1997 and again this year). Opposition from parts of the family law community blocked the Bar Board approval each time.

The Academy has secured a good bill sponsor -- Rep. Goodman carries much family law legislation and is in a position to shepherd the bill through the House. The fact that Rep. Goodman is carrying the bill may be an indication that opposition to the legislation among family lawyers is mixed at best.

The legislation has been dubbed the "Family Harmony Bill" -- I'm not making that up. Since it tinkers with our marital property system, it requires a constitutional amendment. HJR 36 would amend the constitution to permit transmutation of separate property into community property by agreement, and HB 734 would add Subchapter C to Chapter 4 of the Family Code (Sections 4.201 -- 4.206). [01/27/99]

HB 734 and HJR 36 (by Rep. Goodman) would change the Family Code and amend the Constitution to permit conversion of separate property into community property by agreement.

The Real Estate, Probate and Trust Law Council of the State Bar of Texas has tried to get a bill and constitutional amendment on this subject in 1997 and 1999. Both times the Council's efforts have been thwarted at the State Bar Board of Directors level (the Council must get Board approval before formally backing any legislation) due to objections from parts of the family law community. I don't know who is pushing this amendment now, but it is a welcome development. Spouses now can agree to convert community property into separate property, but not vice versa. This would allow spouses to agree that separate property is community property without waiting for commingling to accomplish this result over time. Given the free step up in basis for both halves of community property upon the death of a spouse, as well as the ability to equalize estates for bypass planning purposes, passage of HB 734 and HJR 36 would make life much easier for estate planners.[01/25/99]