(11) Community Property: Basic Presumptions & Relationship Types Flashcards
What to start every Community Property with
California is a community property state. All property, earnings and debts acquired during marriage is presumed community property, unless otherwise agreed. Community property begins upon marriage and ends at divorce, death of a spouse or a permanent physical separation. Property acquired prior to marriage or after separation, or acquired during marriage through gifts, inheritance, property acquired with separate funds, and profits from separate property are all considered separate property. To determine the character of an asset courts will trace back the source of funding used to acquire the property. At divorce all community property is divided equally between spouses while separate property remains their own.
Definition & Rule
Quasi Community Property Presumption
Basic Presumptions
Definition: Quasi-Community Property is property acquired while living in a non-community property state that would be considered community property if the spouses had been living in California when the property was acquired.
Rule: Quasi-Community Property retains its separate property status and may be transferred until (a) divorce or dissolution of the marriage or (b) death of the acquiring spouse.
*At divorce quasi-community property is treated like community property.
*At death, the surviving spouse has a ½ interest in the quasi-community property titled in the decedents name but the decedent doesn’t have any rights to the quasi-community property titled in the surviving spouses name.
Definition & Rule:
Illusory Transfer of Quasi Community Property
Basic Presumptions
Definition: An illusory transfer exists when: (1)the decedent died while domiciled in California; (2) consideration of substantial value was not received; (3) the transfer was made without the surviving spouses written consent or joinder; and (4) the decedent retained some interest or control of the property – where decedent (a) had a possession, enjoyment, or the right to income from the property, (b) had a power to revoke or to consume, invade or dispose of the principal for the decedents own benefit or (c) held property with another that had a right of survivorship.
Rule: The surviving spouse may compel an inter vivos transferee of quasi-community property to restore ½ of the property value when an illusory transfer exists.
Married Woman’s Special Presumption
Basic Presumptions
The married woman’s special presumption gives the wife a presumption of separate property if (1) title is taken in her name alone; and (2) the property was acquired before 1975.
End of Community Property
Basic Presumptions
Community Property ends when (a) either spouse dies or (b) there is a permanent physical separation – when the spouses are permanently living apart and do not intend to continue the marriage.
Married Couples
A valid marriage requires the consent of two parties with the legal capacity to enter into the contract of marriage and the formal legal procedures.
Void Marriage
A void marriage is invalid from its inception and includes: (a)incest; (b)bigamy – had a legal marriage –> this can become a voidable marriage if the prior spouse has been absent and it is not known for at least 5 years if they are alive.
Voidable Marriage
A voidable marriage is valid until judged. A voidable marriage may be voided if any of the following conditions existed at the time of marriage: (a)one of the parties was underage; (b) one of the parties had a prior existing marriage; (c) one of the parties was of unsound mind; (d) one of the parties consent to marriage was obtained by force; (e) one of the parties was physically incapable of entering into marriage; (f) one of the parties consent was obtained by fraud.
*For (d) and (f) is the party freely cohabitated after the force or fraud then the marriage can no longer be voided.
Definition & Rule:
Putative Spouse
Definition: A putative spouse is one that has a good faith reasonable belief that they are married.
Rule: A putative spouse is entitled to “quasi-martial” property which is treated like community property at death or divorce. The right to quasi-martial property ends once the person learns they are not lawfully married but the person retains the previous rights acquired while they had the good faith belief.
Rule: If a decedent has two spouses one they are legally married to and one that is considered a putative spouse then the estate will be split equally between the two spouses.
Unmarried Cohabitants
Courts may enforce express agreement between cohabiting couples that are not married as long as they are not based on performance of illicit sexual acts. Courts may also consider factors that indicate implied agreements to protect parties expectations.
*All funds kept in separate accounts of unmarried cohabitants are deemed separate property.
Definition & Rule:
Marriage by Estoppel
Definition: One party induces the other into marriage knowing the marriage is invalid but making promises that are subsequently not kept.
Rule: The marriage is invalid but there are community property protections.
Domestic Partners
Domestic partners are two adults who (1) share an intimate and committed relationship and (2) are members of the same sex or members of the opposite sex and one partner is over 62 years old. Upon the death of a domestic partner the surviving partner has the same rights as a surviving spouse. Upon dissolution the court will divide the community property equally between the partners.
