PMA Flashcards
FC 2581
All property acquired in joint and equal form is presumed to be CP and may be rebutted by a clear statement in the deed that the property is SP, or proof that the parties made a written agreement that the property is SP
FC 1610
PMA is an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage
FC 1612(c)
> 1/1/02: Waiver of SS in PMA is unenforceable w/o independent counsel or if the provision is unconscionable at the time of enforcement
Marriage of Howell
Pre 1/1/02 waiver of SS is enforceable
FC 1611
PMA must be in writing; DNR consideration
Waiver of SS 1986-1982
Not presumptively invalid
Post-2002
FC 1612(c)
Estate of Wilson
DP agreement remained valid after marriage just like PMA
IRMO Carpenter
Absent written waiver FC 2640 applies
Cadwell-Faso & Faso
Independent representation and multiple drafts does not invalidate addendum presented less than 7 days before M
FC 852(a)
Except for personal property items of nominal value, transmutation of real or personal property is valid only if there is a writing by an express declaration that is joined in, consented to, or accepted by the spouse whose interest is adversely affected
Estate of MacDonald
Adversely affected spouse’s “express declaration” must contain language that expressly states characterization or ownership of the property is being changed (adoption agreement in IRA was not an express declaration)
Transmutation
Valid TM pursuant to 852(a) requires:
- Writing
- Express declaration
- Joined in, consented to, or accepted
Estate of Bibb
Word “grant” in deed, w/o extrinsic evidence, was sufficient for valid TM; DMV printout was insufficient
TM - Undue influence
Advantaged spouse has the burden of proving the alleged TM was not the product of undue influence
FC 852(c)
Gifts (tangible articles of personal nature) used solely or principally by spouse to whom the gift is made and that is not substantial in value taking into account the circumstances of the marriage
IRMO Buie & Neighbors
Porsche is not an article of personal nature within the meaning of 852c
Starkman
General assignment provision in trust that did not expressly state characterization or ownership was being changed and did not identify subject property was not a valid TM
Holtemann
Transmutation agreement in trust made conditional upon death is valid TM
FC 760
All property acquired DM while domiciled in CA is CP
- Rebuttable by proof to a preponderance of the evidence
IRMO Ettefagh
FC 760 Presumption that all property acquired DM is presumptively CP is rebuttable by preponderance of the evidence
Valli
FC 760 trumps EC 662 (owner of legal title presumed to be owner to full beneficial title)
Preponderance of the Evidence
More evidence in favor than against the existence or nonexistence of fact in issue (more probable than not)
Clear and Convincing
Evidence so clear as to leave no substantial doubt or sufficiently strong to command the unhesitating assent of every reasonable minds or a high probabiility
FC 771
Earnings and accumulations while living separate and apart are SP
FC 2102(a)
Disclosure duties from DOS through date of division
Mixed Security
If evidence shows that lender relied to any extent on CP in making the loan, then presumption applies and all proceeds will be CP
Grinius
IRMO Grinius
If evidence shows that lender relied to any extent on CP in making the loan, then presumption applies and all proceeds will be CP
Remedy for violation of Fiduciary Duty
1101
(g) 50% plus AF&C at date of highest value
(h) 100% w/ fraud, oppression, or malice
