Article on The Killing of Community Property

Karen S Gerstner recently published an Article entitled, The Killing of Community Property, 11 Tex. Tech Est. Plan. Com. Prop. L.J. 1 (2018). Provided below is the first paragraph of the introduction of the Article.

The primary purpose of this article is to educate individuals who are unfamiliar with community property law and to explain why certain actions taken by Congress, federal courts, and the Internal Revenue Service (the “IRS”) have amounted to the killing of community property. A secondary purpose of this article is to encourage Congress, and particular the members of Congress from community property states, to consider passing legislation (i) to amend the Employee Retirement Income Security Act of 1974 (“ERISA”) to recognize the community property ownership interest of the spouses of employees and retirees who have accumulated qualified employee benefit plans (“qualified plans”) while living in a community property state and to allow those spouses to dispose of their ownership interest in those qualified plans if their spouses die prior to the employee or retiree, to the maximum extent possible in view of both federal administrative goals and state law property ownership goals, and (ii) to clarify or modify section 408(g) of the Internal Revenue Code so that it does not abrogate the community property ownership of Individual Retirement Accounts (“IRAs”) accumulated by married persons living in community property states, except to the extend absolutely necessary to achieve federal income tax goals.