Community Property Flashcards
What are the options?
-community property
-quasi-community property
-separate property
Division
Each spouse co-owns community and quasi-community property 50/50
Separate property according to traditional property law rules
Generic community property definition
Property that came in during the marriage while the spouses lived in California
Quasi-community property definition
Property that came in during the marriage before the spouses lived in California
Separate property definition
Property that’s neither community property nor quasi-community property
Personal injury recovery against third-party tortfeasor, classification in case of spouse’s death?
According to when the cause of action arose.
Personal injury recovery against other spouse
Separate property
Retirement pensions and severance pay
Community property unless no part of them were earned during the marriage
Disability pay and worker’s comp.
First ask, what pay is this intended to replace?
Then ask, how would we classify that pay?
Stock options
First ask, did the employer give them as comp for past work or to encourage the employee to stay in the future.
If for past work, community property = (time between start of employment and exercise of options that they were married)/(time between start of employment and exercise of options). Rest is separate property
If to encourage future work = (time from award of option to end of community)/(time from grant of options to when they became exercisable)
Degrees
Separate property.
Term life insurance policy
Whichever community made the last payment
Whole life insurance policy
Apportioned according to payments
What’s necessary for a pre-nup agreement to overwrite public law community property rules?
compliance with the statute of frauds, although consideration isn’t necessary
What are agreements overwriting community property public law rules and made during marriage called?
Transmutations.
Requirements for a valid transmutation.
- made in a written express declaration that is consented to or accepted by the spouse whose interest is adversely affected.
- expressly declare that a change in the ownership of property is being made.
Jointly titled property
Marriage ends with death = irrebuttably presumed community property absent an agreement
Marriage ends with separation = rebuttably presumed community property
Exception: a jointly held bank account, there you trace the funds
What is exhaustion tracing?
Presumed that the money was community property money unless community piggy banks at the purchase time were empty
What is direct tracing?
Presumed community property unless proponent of separate property can show:
(1) there were sufficient separate funds available for the purchase, and
(2) he intended to use those separate funds to purchase a separate property asset.
Non-monetary property bought with money from a jointly-held account, both direct and exhaustion tracing point to same spouse as source.
That spouse’s separate property.
Non-monetary property bought with money from a jointly-held account, both direct and exhaustion tracing point to different spouses as source
Community property.
Non-monetary property bought with money from a jointly-held account, tracing doesn’t give a definitive answer.
Community property.
Non-monetary property money used to buy came from an account not jointly held but filled with community property money.
Community property.
Non-monetary property money used to buy came from an account not jointly held and filled with separate property money.
Separate property
Non-monetary property money used to buy came from an account not jointly held, but can’t tell whether the money in it is community property or separate property.
Pretend the non-monetary property IS money that came in at the time the non-monetary property came in, and use that analysis to decide.
Business owned before the community started
Use either Van Camp accounting or Pereira accounting.
Test for whether to use Van Camp accounting or Pereira accounting.
Pereira should generally be used when management by the spouse was the primary cause of the growth or productivity of the initially separate business. Van Camp should generally be used when the character of the separate business is largely responsible for its growth or productivity.
Van Camp accounting test
- the manager’s services are valued at the going market salary for such services.
- Then family expenses that were paid from the business earnings are subtracted from the value of the manager’s services.
- The remainder, if any, represents the community property portion of the business.
- The rest of the business is the separate property of the managing spouse.
Pereira accounting
- begin with the business’s value at time marriage community started
- (that value)(1 + (.1years)) = separate property
- community property = (business’s value at end of community) - separate property
Improvements to real property
not factored in
When does federal law preempt California community property doctrine
- property right recognized under state law conflicts with the express terms of federal law
- the state law causes sufficient injury to federal objectives
Homestead land
federal homestead law preempts
Armed forces life insurance benefits
federal law preempts. The servicemember may designate whoever they want as the beneficiary.
US Savings Bonds
Under United States Treasury Regulations, when either co-owner of a savings bond dies, the survivor is the sole and absolute owner.
Social Security Benefits
Social security law preempts.
Railroad Retirement Benefits
Federal Railroad Retirement Act provisions making the retired worker the owner of his pension preempt state law community property division of those benefits to the extent those benefits parallel social security benefits.
VA disability benefits
federal law preempts
From when to when does the economic community run.
begins at marriage and ends at one spouse’s death or on the date of separation.
When is the separation date?
date upon which you have both:
(1) a spouse has expressed an intent to end the marriage to the other spouse, and (2) conduct consistent with that intent.
Non-monetary property bought with money from a jointly-held account, both direct and exhaustion tracing point to same spouse as source.
That spouse’s separate property.
