Special Presumptions and Jointly Titled Assets Flashcards
What is the Special Title Presumption?
The special title presumption presumes that the form of ownership on the title represents the form of ownership interests of the spouses.
If the asset is only titled in one spouse’s name, then the court may consider the asset to be SP if the source of the funds used to purchase the asset was SP.
When does the Special Title Presumption apply?
Only at death!!!!!!!!!!
ESSAY TIP: Does a spouse having title alone do anything to rebut a CP presumption?
No, taking title in one’s name alone is not enough to rebut the CP because the special title presumption only applies at death.
ESSAY TIP: Could a spouse holding sole title rebut a CP presumption when paired with other evidence?
Yes!
What is significant about holding sole title in QCP?
Record owner of a specific QCP asset has exclusive management over the asset, such as the right to transfer property.
[Contrasts the ‘equal’ management rule regarding CP!]
Restoration to Estate re: QCP sole ownership
Allows a spouse to avoid the transfer of QCP (where other spouse is the sole record keeper) up to 1/2 of the value of the asset. Requires:
1) Record owner transfers asset to third party
2) Without substantial consideration
3) Without written consent or joinder of other spouse
4) Transferor spouse died while domiciled in California
How does Restoration of Estate work if transferor spouse retains possession, control, of property interest?
Non-consenting spouse may require transferee to restore 1/2 of the value of the asset to the non-consenting spouse.
When does property have a special community property presumption at legal separation or divorce?
When the title is jointly held by the spouses.
1) Joint tenancy
2) Tenancy in Common
3) Tenancy by the Entirety
How does one rebut the special CP presumption?
AKA What is the Anti-Lucas Test?
Through clear and convincing evidence that both spouses did not intent to hold property as CP following divorce.
Anti-Lucas Test: As of January 1, 1984, contrary intent must be evidenced by clear statement in the deed or another form of writing.
Through the Anti-Lucas test, may a spouse who contributes SP to a jointly held property be reimbursed?
Yes, even if there is no writing that is evident of the spouses intentions to hold the property as SP.
However, the contribution is without interest.
What is the Married Woman’s Special Presumption?
Before January 1, 1975, if a married woman was the title owner to property without her husband or if she was on the title with a third party, then the property was presumptively her SP.
What is the effect of a jointly titled bank account?
How can it’s presumption be rebutted?
The account will be presumed CP, regardless of source of funds.
This presumption can only be rebutted by another agreement that property is not held jointly.
What is the Special Community Property Presumption?
How i it rebutted?
What happens if a spouse uses SP to purchase?
At divorce, all jointly held property is presumed to be CP.
Can be rebutted by express writing demonstrating spouses’ intent for property to be SP.
If SP was used, spouse can obtain contribution. BUT NOT INCREASE IN VALUE.
