Presumptions Affecting Characterizations of Property

Question 1

Conclusive Presumption

Answer 1

A presumption which cannot be rebutted, regardless of the actual facts are. A conclusive presumption has the effect of establishing the facts surrounding that presumption by operation of law

Question 2

Rebuttable Presumption

Answer 2

A presumption that shifts the burden of proof to the person contesting the presumption. Most presumptions are rebuttable rather than conclusive due in no small part to the draconian nature of a conclusive presumption.

Question 3

General Presumption re Property Acquired During Marriage

Answer 3

CFC §7 60 states that all property acquired by the parties during the marriage is presumed to be community property. Of course, this presumption can be rebutted with an affirmative showing that the property was not intended by the parties to be community in nature.

Question 4

Married Woman’s Presumption

Answer 4

CFC § 803 states that any acquisition of property by a married woman in her own name, by a written instrument, prior to 1/1/75, is presumed to be hers and separate property is presumed to be her sole and separate property.

Question 5

Joint Tenancy Presumption

Answer 5

CFC § 2581 establishes that whenever married persons take title to a piece of property such that both of their names are jointly set forth thereon, it is presumed that the property is community in nature and upon termination of the marriage should divided equally between them. This statute continues and indicates that this, presumption may only be rebutted by a “clear statement in the deed or other documentary evidence of title by which the property is acquired that the property is separate property and not community property.”