Effect of Manner of Taking Title on Characterization Flashcards
Title by Joint and Equal Form
- if property is taken by joint and equal form, the tracing rules do not apply
- if there’s no title document→ then use tracing.
- joint and equal form if the title takes both spouse’s names
i. ex. Mr. and Mrs. S; H and S and joint tenants - for expenditures of separate property for community property:
Title by Joint and Equal Form – if one party dies
interests are governed by Marriage of Lucas:
i. any contribution of SP is presumed to be a gift when taking title by joint tenancy
a. neither party has a separate property interest
b. no claims for reimbursement (ex. renovations made with SP during the ownership)
ii. for there to be separate property or reimbursement when taking by joint and equal form, there must be an express agreement so stating
iii. note: the Lucas rule does not apply if there is no title document or deed is involved
a. receipts are not enough
b. ex. if receipt says “Mr. and Mrs. Harry Smith” as buyers, regular source rule applies
Title by Joint and Equal Form - In Divorce
interests are governed by statute (anti-Lucas statutes)
i. ownership: entire property is presumptively CP
a. property acquired during marriage in joint and equal form is presumptively CP, and is subject to equal division on divorce
b. CP resumption can be rebutted by:
i) written agreement by the parties that the property (or portion thereof) is SP; or
ii) express statement in deed or instrument of title that the property (or portion thereof) is SP
ii. reimbursement: contributor is reimbursed for contributions to DIP (downpayment, improvements or principal payments)
a. spouse contributing SP to the acquisition or improvement of CP is entitled to reimbursement without interest if those contributions are to:
i) Downpayment,
ii) Improvements, or
iii) Principal payments on mortgage
b. no reimbursement for SP used to pay other things (taxes, insurance, etc.), unless expressly indicated
