3. Title Flashcards
What are the four forms of title?
(1) Community Property - states “as common property” or “as husband and wife” = not partitionable during marriage.
(2) Community Property with Right of Survivorship (“RoS”).
(3) Tenancy in Common - to the spouses, nothing else indicated.
(4) join Tenancy - Must specify “as joint tenants” = two equal SP interests with right of survivorship. Each may ALIENATE their 1/2 interest (breaking RoS). Their 1/2 interest is not reachable by the other spouse’s creditors.
What is “right of survivorship”?
If one spouse passes away, their portion reverts automatically to the other spouse.
What is the “joint and equal title” presumption?
A STRONG presumption that when TITLE IS TAKEN by a husband and wife together, it manifests intent to be held jointly and equally (50/50) and only by a WRITTEN AGREEMENT to the contrary can a spouse trace to SP or assert a SP interest in the property (unless joint tenancy).
What is the “married women’s” presumption?
Where title was taken prior to 1975:
(1) by a wife alone = 100% SP
(2) to husband and wife as tenants in common or as “H&W” = 1/2 is Wife’s SP and 1/2 is CP (she gets 75%)
Can the “married women’s” presumption be rebutted?
If there’s a sale to a bone fide purchaser for consideration without knowledge of the marriage - NO
Otherwise, H must show it was purchased with CP and that he did not intend it to be a gift.
