Community Property-Basic Rules Flashcards
How do you start all essays?
CA is a CP state. The presumption is that all property acquired during marriage while domiciled in CA is CP, and all property acquired before marriage or after permanent separation is presumed to be SP. In addition, any property acquired by gift, devise or bequest is presumed to be SP. In order to determine the character of any asset, courts back will trace back to the source of the funds used to acquire the asset, taking into account any actions by the parties that might have altered the nature of the asset. A mere change in the form of the asset does not change how it is characterized (i.e., selling house for cash). Quasi Community Property (QCP) is real or personal property acquired while domiciled elsewhere that would have been CP had it been acquired while domiciled in CA. At dissolution of marriage, the equal division rule applies, that is each item of CP is divided 50:50. At divorce, QCP is treated the same way as CP. At death, if the non-acquiring spouse dies first, s/he has no power to devise QCP. However, if the acquiring spouse dies first, the QCP is treated exactly as CP.
What is community property?
The presumption is that all property acquired during marriage is CP. This includes out of state property acquired while domiciled in CA.
What is separate property?
SP is real or personal property acquired before marriage or during marriage by inheritance or gift. Includes income, interests, rents from such SP.
What is quasi community property?
QCP is property acquired while domiciled in another state that would be CP had it been acquired while domiciled in CA.
What is the exchange rule?
Property acquired by exchange has the same character as that which was given up in the exchange, i.e., if CP was used to acquire something, the new thing is also CP.
What is the equal division rule?
At divorce, the community assets will be equally divided unless the court finds that the interest of justice requires an unequal division. Generally, each and every asset must be divided 50:50. When circumstances demand an unequal distribution of an asset, then other assets are awarded in such a way as to end up with 50:50.
When does the economic community end?
At death or when spouses are physically separated with no intent to resume the marital relationship. Note: If question does not establish marriage, need to analyze.
What is a putative spouse?
A putative spouse is an innocent spouse with a good-faith belief that s/he is lawfully married. Has same prop rights as a lawful spouse upon dissolution of marriage or death, provided that believe is reasonable and has an objective basis. Property received by putative spouse is QCP.
What happens to CP at death?
At death, spouse is entitled to dispose of all SP and 1/2 of the CP. It is 1/2 of each item of CP, not 1/2 of the total. A will provision that says a surviving spouse must elect either 1/2 share of CP or a gift under will will be upheld.
What happens to QCP at death?
At death of the acquiring spouse, survivor has 1/2 interest in QCP as if it were pure CP. If non-acquiring spouse pre-deceases acquiring spouse, non-acquiring spouse has no right to devise or convey any portion of the QCP.
What happens to QCP at divorce?
Treated exactly like CP.
What happens if spouse dies without a will?
CP is awarded entirely to the surviving spouse. Between 1/3 and all of the decedent’s SP will be awarded to the surviving spouse depending on whether there are issue or parents surviving.
What is a meretricious spouse?
A spouse who knows that the marriage is invalid. No CP to MS. Generally apply contract principles, and estoppel to those who knowingly seek to benefit from an invalid marriage.
What happens to a life insurance policy at death where third party named as beneficiary?
If it is a CP policy, it is presumed to be the deceased spouse’s one-half interest in the policy. Other half goes to surviving spouse.
What are exceptions to equal division rule at divorce?
1) misappropriation by one spouse; 2) liabilities exceed assets and one spouse has greater ability to pay;3) educational debts assigned to educational spouse; tort liabilities assigned to tortfeasor; home may be assigned to custodial parent.
