Community Property

Question 1

Community Property: Section 760

Answer 1

All property, real or personal, wherever situation, acquired by a married person during the marriage while domiciled in CA.

Question 2

Separate Property: Section 770

Answer 2

(a) Separate property of a married person includes all of the following:
(1) all property owned by the person before marriage
(2) All property acquired by the person after marriage by gift, bequest, devise or descent
(3) The rents, issues, and profits of the property described in this section

(b)A married person may, without the consent of the person’s spouse, convey the person’s separate property

Question 3

Gift

Answer 3

An inter vivos transfer of property without consideration

Question 4

Bequest

Answer 4

Testamentary transfer of personal property (at death by will)

Question 5

Devise

Answer 5

Testamentary property of real property

Question 6

Descent

Answer 6

Transfer of property via intestate succession

Question 7

Requirements for Transmutation: 852

Answer 7

(a) A transmutation of real or personal property is not valid unless made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected.
(b) A transmutation of real property is not effective as to third parties without notice thereof unless recorded
(c) This section does not apply to a gift between the spouses of clothing, wearing apparel, jewelry, or other tangible articles of a personal nature that is not substantial in value taking into account the circumstances of the marriage
(d) Nothing in this section affects the law governing characterization of property in which separate property and community property are commingled or otherwise combined.
(e) The section does not apply to or affect a transmutation of property made before January 1, 1985, and the law that would otherwise be applicable to that transmutation shall continue to apply.

Question 8

Effect of Will: 853

Answer 8

A statement in a will of the character of property is not admissible as evidence of a transmutation of the property in a proceeding commenced before the death of the person who made the will.

Question 9

Transmutation of property by agreement or transfer: 850

Answer 9

Subject to sections 851 and 853, invlusive, married persons may by agreement or transfer, with or without consideration, do any of the following:

(a) Transmute community property to separate property of either spouse
(b) Transmute separate property of either spouse to community property
(c) Transmute separate property of one spouse to separate property of the other spouse

Question 10

Fraudulent Transfers laws apply: 851

Answer 10

A transmutation is subject to the laws governing fraudulent transfers

Question 11

Premarital Agreement: 1610

Answer 11

an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage

Question 12

Property: 1610

Answer 12

An interest, present or future, legal or equitable, vested or contingent, in real or personal property, including income and earnings

Question 13

Formalities; consideration: 1611

Answer 13

A premarital agreement shall be in writing and signed by both parties. It is enforceable without consideration

Question 14

Subject Matter of Premarital Agreement: 1612

Answer 14

(a) Parties to a premarital agreement may contract with respect to all of the following:
(1) The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located
(2) The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property
(3) The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event.
(4) The making of a will, trust, or other arrangemnt to carry out from a life insurance policy
(5) The ownership rights in and disposition of the death benefit from a life insurance policy
(6) The choice of law governing the construciton of the agreement
(7) Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.

(b) The right of a child to support may not be adversely affected by a premarital agreement

Question 15

Agreement becomes effective upon marriage:1613

Answer 15

a premarital agreement becomes effective upon marriage

Question 16

Amendment; Revocation: 1614

Answer 16

After marriage, a premarital agreement may be amended or revoked only by a written agreement signed by the parties. The amended agreement on the revocation is enfrocable without consideration

Question 17

Enforcement: 1615

Answer 17

(a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves either of the following:
(1) That party did not execute the agreement voluntarily
(2)The agreement was unconscionable when it was executed and, before execution of the agreement, all of the following applied to that party:
(A) That party was not provided a fair and reasonable disclosure of the property or financial….pg. 81

Question 18

Transactions with each other and third parties; fiduciary relationship of husband and wife

Answer 18

(a) Subject to subdivision (b), either husband or wife may enter into any transaction with the other, or with any other person, respecting property, which either might if unmarried
(b) Except as provided in Sections 143, 144, 146, 16040, and 16047 of the Probate Code [which requires a trsutee to invest and manage trust assets as would a prudent investor], in transactions between themselves, a husband and wife are subject to the general rules governing fiduciary relationships which control the actions of persons occupying confidential relations with other. This confidential relationship imposes a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other. This confidential relationship is a fiduciary relationship subject to the same rights and duties of non-marital business partners, as provided in Sections 16403, 16404, and 16503 of the Corporations Code.

Question 19

Earnings and Accumulations while living separate and apart: 771

Answer 19

The earnings and accumulations of a spouse and the minor children living with, or in the custody of, the spouse, while living separate and apart from the other spouse, are the separate property of the spouse.

Question 20

Introductory Paragraph

Answer 20

California is a community property state. All property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property. [California Family Code (CFC) 760] All property owned by the person before marriage and all property acquired by the person after marriage by gift, bequest, devise or descent. [CFC 770]. Community property. The presumption of California Community Property can be rebutted by tracing, title, and transmutation.