5) Power to manage the community estate

Question 1

pre 1975

Answer 1

husband had sole mgt/control of CP

Question 2

current rule

Answer 2

each spouse has equal power to manage and control the CP

Question 3

current rule: exception

Answer 3

spouses can make POA in writing or other agreement to change this default

Question 4

gift of community property

Answer 4

spouse can’t make gift of com property (dispose of it w/o consideration) w/o written consent of other spouse!

Question 5

gift of com property: nonconsenting spouse: result

Answer 5

1) can ratify or revoke + sue

2) after death can void up to 50% of the value of the gift (their CP)

Question 6

real property

Answer 6

need BOTH spouses to sell, convey, encumber, or lease for 1+ year any of the RP. (bc SOF)

Question 7

real property: exception

Answer 7

court can approve w/o consent if

1) in the interest of com
2) consent arbitrarily withheld or can’t get bc incapacity or absence

Question 8

real property: result

Answer 8

if no consent + consent not waived

other spouse can void transaction

Question 9

real property: title in spouse of 1 name only

Answer 9

(presumption valid vis a vis the 3rd party acting in good faith who dnk about the marriage. nonconsenting spouse’s only recourse is agianst other spouse)

Question 10

community business

Answer 10

1) managing spouse has primary mgt/control, can act alone in trnsaction
2) need prior written notice for major transactions

Question 11

com business: what if major transaction and don’t notify?

Answer 11

does not affect validity of transaction

can sue for breach of fiduciary duty

Question 12

fiduciary duties btwn spouses: origins

Answer 12

confidential rship as MOL from marital state – natue of marriage = mutual obligations of respect, fidelity, support

Question 13

fiduciary duty: rule

Answer 13

each spouse must use “highest good faith and fair dealing” wrt the other spouse, in transactions btwn them and in managing/controlling the CP

Question 14

fiduciary duty: dx

Answer 14

same rights/duties as those of business partners under the corporations code, inc. inspecting books + accounting + obligation to make full disclosure to other spouse UPON REQUEST re existence of assets, debts

Question 15

fiduciary duty: ways to breach

Answer 15

1) get an advantage over other spouse in CP transaction (rebuttable presumption of undue influence)
2) grossly negligent + reckless investment of com funds
3) undivided 1/2 interest in com estate is impaired

Question 16

REMEDIES for breach of duty

Answer 16

1) forfeiture
2) accounting
3) addition of other spouse to title
4) atty fees

Question 17

remedies: forfeiture

Answer 17

if prove fraud by c/c, remedy may be 100% of value of asset

Question 18

remedy for breach of duty: caveat

Answer 18

must bring clai w/in 3 years (of actual knowledge) OR at divorce