Spousal Agreements Affecting Property Division

Question 1

What is Transmutation?

Answer 1

Transmutation means changing the classification of property by agreement or transfer from CP to SP, from SP to CP, or from one spouse’s SP to the other spouse’s SP.

Transmutations made on or after January 1, 1985, must be made in writing by an express declaration of the spouse whose interest in the property is adversely affected.

Question 2

May a spouse argue that transmutation occurred when the spouse deposits CP wages in their personal bank account?

Answer 2

No; transmutation still would require an express declaration in writing.

Question 3

What is the exception to the express written declaration requirement re: Transmutation?

Answer 3

An express written declaration is not required if the transfer is a gift! Requires:

1) Gift between spouses

2) Personal Property

3) Cannot be of “substantial value**

Question 4

How do you determine whether a gift is of substantial value?

Answer 4

Take into account the circumstances of the marriage and the value of the gift.

EX: If one spouse has a higher paying job or is more experienced in certain transactions, then the gift may be of substantial value.

Question 5

Election Clause in Deceased Spouse’s Will

Answer 5

An election clause in a will requires the surviving spouse to choose between their CP interests or the rights under the will.

Question 6

Is there a statutory elective share in California?

Answer 6

No.

Rather, a surviving spouse simply takes 1/2 of QCP or CP.