Declaration of Paraphernality : Reserving Fruits and Revenues of Separate Property
Declarations of Paraphernality : Reserving Fruits and Revenues of Separate Property
Generally speaking, the fruits and revenues of separate property are considered community property of a marriage. For example if a spouse owns a rental property that was purchased before a marriage, the rent payments received during the marriage from that rental property would generally be considered community property despite the fact that the property itself is classified as separate property.
The Louisiana civil code does allow an individual to reserve these revenues or “fruits” of separate property through a written declaration. Such instruments are commonly called declarations of paraphernality. These contracts modify the matrimonial regime and when properly executed allow for the revenues and fruits of separate property to be classified as separate property. Louisiana Civil Code Article 2339, entitled “Fruits and revenues of separate property” provides:
“The natural and civil fruits of the separate property of a spouse, minerals produced from or attributable to a separate asset, and bonuses, delay rentals, royalties, and shut-in payments arising from mineral leases are community property. Nevertheless, a spouse may reserve them as his separate property as provided in this article.
A spouse may reserve them as his separate property by a declaration made in an authentic act or in an act under private signature duly acknowledged. A copy of the declaration shall be provided to the other spouse prior to filing of the declaration.
As to the fruits and revenues of immovables, the declaration is effective when a copy is provided to the other spouse and the declaration is filed for registry in the conveyance records of the parish in which the immovable property is located. As to the fruits of movables, the declaration is effective when a copy is provided to the other spouse and the declaration is filed for registry in the conveyance records of the parish in which the declarant is domiciled.”
La. C.C. Art. 2339
It is of note that although the consent of the other spouse is not required, the article states that a copy of the declaration must be provided to the other spouse and filed in the conveyance records of at least one parish. This article contains some very subtle complexities that have been the subject of debate in recent years. In order to execute an effective declaration under this article, contact an attorney.
From Kevin Edler