Chapter 5-4 Community Administration

• Jurisdiction: United States

5-4 Community Administration

If a married couple has nothing but community property and one spouse becomes incapacitated, the other spouse can avoid guardianship with a process called "community administration."²⁰⁴ Of course, this does not negate the guardianship avoidance vehicles of durable powers of attorney or revocable living trusts executed before one of the spouses becomes incapacitated. However, in the event the incapacitated spouse did not prepare any estate planning documents before becoming incapacitated, all is not lost. Upon the judge ruling that one spouse is incapacitated, the other spouse becomes the "community administrator."²⁰⁵ This healthy spouse, in his or her capacity as surviving partner of the marital partnership, acquires full power to manage, control, and dispose of the entire community estate, including the part that the incapacitated spouse would legally have the right to manage had he or she not been incapacitated.²⁰⁶ Moreover, the spouse who is not incapacitated manages the entire community estate without an administration; the law presumes that he or she is suitable and qualified to serve as community administrator.²⁰⁷

That being said, the appointment of one spouse as community administrator does not affect the duties and obligations of the spouses toward each other, including the duty to support each other as spouses, and the rights of creditors of either spouse.²⁰⁸ However, the healthy spouse can sell the entire community estate if he or she so desires.²⁰⁹

5-4:1 Duties of the Community Administrator

Unlike guardianship, community administration does not require the posting of bond by the healthy spouse. However, the court may, on its own motion or upon the motion of an interested party, order the community administrator to file a verified, full, and detailed inventory and appraisement of the community estate and any income earned thereon.²¹⁰ This inventory and appraisement must be prepared in the same form and manner as similar reports filed by guardians, and must be filed with the court no later than 90 days after the date the order is issued.²¹¹

At any time after the fifteenth month following the date on which the court adjudicated the incapacitated spouse to be incapacitated, the court may, upon its own motion, or upon the motion of an interested party, order the community administrator to file an account of any community property in the community estate, and any income earned thereon since the declaration of the spouse's incapacity.²¹² The account must be similar in form and manner to that required of guardians under the Texas Estates Code, and must be filed with the court no later than 60 days after the court issued its order.²¹³ Thereafter, the court may require annual accountings from the community administrator.²¹⁴

5-4:2 Disclosure of Lawsuits by Community Administrator

The community administrator is required to report to the court any lawsuit that names the incapacitated spouse as a defendant.²¹⁵ This specifically includes a divorce proceeding brought by the healthy spouse—the community administrator—to terminate the marriage.²¹⁶

5-4:3 Removal of Community Administrator

The law provides four reasons...