Character of Property: Titled Property

Question 1

What are the ways in which a married couple can hold property (4)?

Answer 1

1. joint tenancy
2. tenancy in common
3. as CP
4. as “CP with right of survivorship”

Question 2

What is the result of holding property in joint tenancy?

Answer 2

• Each spouse owns an undivided 1/2 interest
• Survivor of the two automatically becomes owner of decedent’s interest as well as his own

NOTE: each 1/2 interest is a SP interest

NOTE: explicit language is required to create a joint tenancy (Example –> “to H & W as joint tenants”)

Question 3

What is the result of holding property as tenants in common?

Answer 3

• Each spouse owns an equal proportional interest in the asset
• There is NO right of survivorship

Question 4

What is the result of holding property as CP?

Answer 4

• Each spouse owned an undivided 1/2 interest

- Neither spouse can partition the whole

Question 5

What is the result of holding property as CP w/ a right of survivorship?

Answer 5

• Has all the attributes of holding as CP, except at death of spouse, decedent’s 1/2 interest vests in survivor

Question 6

What is the rule re: jointly held title at time of divorce or legal separation?

Answer 6

• All property held by spouses in joint form is PRESUMED to be CP for the purposes of distribution

EXCEPTION: this presumption can be overcome only by:

1. collateral written agreement; OR
2. statement in documentary evidence of title that the property is SP and not CP

Question 7

What is the rule re: form of title if marriage is terminated by death?

Answer 7

• form of title controls
• if title is held in joint and equal form, and one spouse contributed SP to purchase or improvement of the property, contribution is PRESUMED to be a gift, absent agreement of parties to contrary
• there is no right of reimbursement unless parties have so agreed

Question 8

What is the special rule re: jointly titled bank accounts?

Answer 8

The regular rules do not apply.

• there is no presumption of gift from form of title
• probate code 5305 provides that contents of jointly held bank account is presumptively CP, BUT this presumption may be overcome by tracing to one spouse’s SP (unless married persons expressly agree that such sums will be their CP)