Juliet Aftandilian

COMMUNITY PROPERTY OUTLINE ~ FALL 2006 (POPOVICH) CHAPTER ONE: DEVELOPMENT OF THE SYSTEM

I. Background & Overview
a. CL system was created in England and defines marriage property very differently. b. We are dealing with California CP which has lots of statutes; the underlying principles are the same as in other states but there are substantial differences too. c. CA has the greatest body of CP law. Intestate Succession = d. CP Includes: real property, personal property, life insurance and things dying w/o a will. II. Community Property v. Common Law Marital Systems a. Common law System (important to know b/c relevant w/ QCP) i. More popular (40+ states) ii. Derived from English common law; most all states until CP evolved. iii. Includes Spousal protection mechanisms: the wife is entitled to a portion of the earnings; again, the trend is ½ if H dies intestate. 1. Equitable distribution: at death or divorce, the wife gets some of H’s money. The percentage depends on the state, but most do it 50/50 (and thus it starts to look like CPS). a. Example: H died with a will in a CLS, giving everything to H’s sister and nothing to W; W will get a “forced share;” she can choose to get the elected share in the will or intestate share (varies by state; close to half) b. Community Property System (followed by 8 states) i. Derived from Spanish-Mexico ii. Uniform Marital Property Acts (UMPA) 1. Has NOT been adopted very widely like other acts. 2. Basically a CP system 3. mentions equal rights for H and W in the marriage 4. Has been adopted in Wisconsin and parts of Colorado and Alaska (& a bit in NY) Common Law Marriage System (CLS) Community Property Marriage System (CPS) From a marriage standard, they are still individuals. What Sometimes called a partnership during the marriage where each earns and subsequently keeps and buys is theirs spouse devote talents and resources to the common good; alone, absent some affirmative action to create joint wages or property or wages from property from the labor or ownership. skill of either spouse is owned by each equally What’s mine is mine & what’s yours is yours, and what’s Each spouse brings something to the marriage and it cannot ours is ours only if we make it ours. always be quantified; spouses do a lot of things that they are not paid for If I own it, I have the power to manage and control it. The Present equal ownership. At the moment property is earned, other spouse cannot say what to do with it. it’s owned 50/50 Historically: marriage brought on a single unified property What each spouse earns and buys alone belongs to both interest, with all being owned and operated by the spouses equally husband, including property the wife owned alone before the marriage. By the end of 1800’s, all CL systems added the “Married What mine is ours, and what’s yours is ours. woman’s property Act” (not responsible for this); it gave property rights to the wife and she owned and controlled any property she had before the marriage and everything she made once in the marriage (bringing on the modern concept of CLS) This created problems though, so for instances of death or Both spouses have equal management and control rights over divorce, there is an equalizing mechanism to protect the CP. non-wage earner in the event of such.

iii. Within CPS, there are mainly two types of property: 1. Separate property

Juliet Aftandilian

2. Community property a. At marriage, immediately becomes the ownership of both.
i. Thus, no need for equalization mechanisms.

b. Rule: The court has no power to allow a spouse to get anything less than ½. BUT parties
can make their own settlement of property rights, but it still has to be approved by a judge. If a judge doesn’t like it, they can say no and require 50/50.

iv. History of CP
1. California Constitution of 1849 2. H had full management and control until 1975. a. Now there is equal management and control AND equal ownership during the marriage.

III. Development of California Community Property System
a. Common law vs. community property systems i. Spousal protection schemes 1. Common law: what’s mine is mine & what’s yours is yours; $2M by husband is husband’s alone. a. Divorce: equitable distribution doctrine b. Death: forced elected share (between 1/3 to ½) 2. Community Property: $2M is owned by H and W jointly. Each own 1 million. a. Spousal protection is built in b. Death: i. Testate: H dies w/ will that says everything goes to brother. 1. Brother gets ½: $1 million through vested ½ property rights ii. Intestate: Dying w/o a will 1. California Intestate Succession Scheme a. CP: ALL of it goes back to surviving spouse i. Relatives and kids are irrelevant. b. SP: depends on the number of children i. No kids: ii. 1 child: split 50/50 to child & surviving spouse. iii. 2 or more children: 1/3 of the property to the surviving spouse and 2/3 to the kids. iv. Basically, it’s absent a will so statute sticks in and does what they think most people would do. ii. Management and control 1. CP: share 2. CL: you manage and control your own assets. iii. Divorce (ex: H own all prop) 1. CL: equitable distribution doctrine – works out THE SAME!! 2. CP: already split up and other spouse already has ½. iv. Death 1. Dying with a will a. Example: H & W; H has a disability that prevents him from working so W is primary and sole wage-earner. H has 2 children from previous marriage and both have severe handicap. H also has parents that are in need of care. During marriage, W has earned and kept $4M. W dies. i. Will: everything goes to my sister 1. CP: $2M goes to H and $2M goes to sister. 2. CL: Spousal protection kicks in: a. H gets some portion, most likely ½ b. Sister gets $2M. b. Example 2: same facts but H dies first wanting to leave something to his parents, kids, and charities i. CP: $2M to parents, kids, and charities

(c) The rents. i. They can adopt a CL system if they want. but dividends during marriage. 1. getting c. Fundamental Principles of the Community Property Systems a. not quasi-community property (below). not including what is given as a gift by other spouse after the marriage begins iii. wherever situated. ii.Juliet Aftandilian ii. (b) anything as gift. real or personal. existing. 2. THE PRINCIPLE OF CONTRACTUAL MODIFICATION i. Thus. and charities get nothing. Usually in one of two codes a. CFC: California Family Code (only codified since 1994. and profits of the property described in this section (see Ransom & tracing principle). rents and profits of SP were CP. CPC: California Probate Code ii. Only in respect to real CP. d. §1612: right to buy and sell. Sometimes. But the court does not like this rule. including child support rights. and equal interests. CFC §760: Statutory definition of community property i. C. H’s creditors cannot get the dividends of the stock b/c its SP. Prenuptial agreements: not of focus in our class. it’s more of an opting out or a redefining of the system. property = present and future interests in Are we income and earnings. CL: parents. New Tracing Principle Rule: we are going to trace the earnings and the see where the money comes from. b. THE EQUALITY PRINCIPLE (§751) i. bequest. (a) Everything before marriage starts out as SP. Real reason: to change the way the community property system is going to work during the marriage. They are NOT to say what’s mine before the marriage is staying mine (already the law!) 2. Thus. From where it came is how it will be classified. but still some protections (i. all property. Sophisticated framework of statutory law (at end of the book) 1. lease & consume. before then CCC) b. In California Constitution at time of this case (1850). need legal counsel). II. Can do whatever. if it’s going to work at all. 1. or devise. . a. They can basically say they don’t want the CP system to apply. the rents. George v. Rule: the respective interests of the husband and wife in community property during continuance of the marriage relation are present. The cases we read tend to be very result-oriented 1. §1610: made in contemplation of marriage. 3. CFC §770: Separate property of a married person (see timeline) i. 1. a. issues and profits during the marriage of SP acquired before the marriage remains separate property. Ransom: W’s stocks owned before marriage. b. acquired by a married person during the marriage while domiciled in this state is community property. 1. *Huge difference between the two systems* b. can define what they want to do w/ their statutes? property. 2. Except as otherwise provided by statute. THE TRACING PRINCIPLE i. “Spousal” protection: are just that – mechanisms to protect the surviving spouse. kids. They only work in one direction: they take decedent’s property and give it to surviving spouse. Statutory basis for prenups since the 1980’s: a. issues. it seems like they are going out of their way to bend the law (dictionaries).e. i. §1611: doesn’t need consideration tested on these d. Waiver of spousal support: allowed. e. except that which violated public policy. Where do we find Community Property law? i. Courts don’t like certain parties. a. §1500: may be altered by premarital agreement b.

SOF was ignored. In re. §852 (CCC § 5110. Holding: for H. only prospective). Transfer for use or for purposes of management and control. (a) NOT valid unless in a writing by an express declaration … If the date of the statement is not given: have to do both 1. c. §851: not so important. H suffered stroke and transferred his stocks over to his wife. by actions. but he put it into IRA’s w/ kids as beneficiaries. …and others (see page 35) ii. iii. 4. d. despite the fact that she did not have legal counsel. “Transfer” does NOT necessarily = “transmutation. Later cases even affirmed implied in fact agreements (ex.Juliet Aftandilian 4. H claims ≠ valid transmutation. Needs to clearly say I am giving up my interest in this account. The purpose of the legislature was to make sure that the person was absolutely clear declaration became about what they were doing and that there were no doubts as to what was being done. Did NOT meet §852 requirements. 2. Security 1st National Bank: W orally declared her intention to transmute her SP to CP to H & friends. likely a MC question) d. i. “transfer. she claimed involuntariness a. a. Note: transmutation rules a. Marriage of Bonds: had prenup that money he made from bball season would remain his. e. must clearly state that there is a transfer of interest. the word “transmutation” doesn’t need to be used. CA legislature did not like the result of the case and added (c) to §1615. but Ask: can we tell unequivocally not equitable ownership. conduct. (e) This law does NOT affect transmutations of property made BEFORE 1/1/85 (i. Estate of MacDonald: pre 1985. She also said she did do it. Does use the word. Note 3 on page 62: Non-probate transfer law does not override §852. not a valid transmutation. Extrinsic evidence CANNOT come in to show parties’ intent. itself.” corners of the document! a. Holding: Sun had acted voluntary in signing the agreement. it just has to be joined in analyses! and consented to by the adversely affected spouse. If statement is made after b. §850: During marriage w/ or w/o consideration. Certain factors that must be met for the agreement to be voluntary (need to know. Is there a writing? Yes transcend death or divorce. Marriage of Barneson: big stock portfolio (SP). c. required for transmutations i. b.730) i. didn’t say same. 7 day cooling off period to review the agreement (between time presented with agreement and when agreement is signed). But. 1/1/85 – when express b. But. Had independent legal counsel OR waived in a writing ii. Then Transmutation States were created in the California Family Code: transmutation a. b. Historically. Here. First date to remember: i. Transmutations: contractual mutations or alleged changes during or after the marriage 1. Woods v. she said she did so she did! Valid transmutation! If statement is made before b. it was very easy to do so. i. to change the character (from SP to CP. CP to SP. 5. No language issues iv. it was more than enough to imply or create a transmutation. that this person is giving up or changing their interest in this property? Cannot look to some tangential document or extrinsic evidence . 1. Note: there does NOT have to be a signature. Rule: the writing. ii.e. or statements. W was just clarifying that she knew what H wanted to do w/ the property upon his death. Was the writing an express declaration giving up her interest in CP? No. but upon death. c. a.” Must be clear from the four 1. or SP of W to SP of H). At divorce. ALL must be met: i. 1985: need to satisfy §852. Is there an express declaration? No. H’s pension plan was CP. W signed the paper (according to law) but then died. how do you like our house?) 1985: probably a 3.

it must clearly do so and “transfer” is just not quite express enough. 6. It may be sufficient for joint tenancy for purposes of the vehicle code. etc. §852(c): Express declaration rule doesn’t apply to gifts made by either spouse that are NOT of substantial value. it’s NOT unequivocal. BUT it is not clear and unambiguous of H’s intent to transfer his interest. Estate of Bibb: H’s SP Rolls Royce. all we care about is the statute and we need to find a writing. Must NOT be of substantial value: No! a. c. b. Rule: No knowledge of the rule is NOT an excuse. c. Point: §852 is strictly construed and even if a reasonable person would think that a transmutation had taken place. jewelry 2. May not necessarily mean they want to give it away. Rule: no concepts of part performance or promissory estoppel will be used to make an otherwise invalid transmutation valid. Requirements: 1. it has to be unequivocal. Are the parties w/in the system? . there must be no extrinsic evidence. 7. b. The writing itself must show that the property interests are being transferred. it WOULD have been a gift. while domiciled in this state [is presumed to be] Community property. e. But H argues partial performance & promissory estoppel. CFC §760: General CP Presumption – all property. a. the legislature was clear when it said that there needs to be a writing when the value is substantial. there is no real state of title presumption. Rule: the classification of property as SP or CP cannot be made simply by reference to title documents. he signed grant deed. Is there an express declaration? No (court assumes but we would say on exam!) c. Rule: Just because it’s put in both names. H claims it was only in exchange for W giving up her interest in pension plan. At divorce. It just changed registration at the DMV. VERY HIGH STANDARD TO MEET! In re. considering the circumstances of the marriage. changed title to be in his or W’s name. H died.Juliet Aftandilian c. d. its NOT presumed to be both of theirs for state of ownership. Thus. Is it an express declaration? No. a. Is there a writing? Yes (the DMV printout) d. Rule: Despite what will be heard in cases. the card b. acquired during the marriage. Always just say “transmutation!” CHAPTER TWO: THE CLASSIFICATION OF PROPERTY AS COMMUNITY OR SEPARATE I. Example?? Marriage of Steinberger: loose diamond (CP) then gave to W on 5th Wedding anniv. each spouse claims it as their SP. W put it in her name only. Rule: when it says express declaration. Is there a writing? Yes. e. i. real or personal. Rule: the written declaration does NOT need to be filed or recorded. Marriage of Benson House was CP from parents. The significance of Classification II. a. but W’s dad asked H to give up his interest in house. H’s son now claims it’s his. Point: very difficult to make an express declaration! f. NO TRUE GIFT. Rule: Can undo transmutations w/ such concepts. Popovich’s 5-Step Approach to classifying property i. there is no transmutation. i. d. Presumption That Acquisition During Marriage is Community Property a. all the circumstances could come in and it would be implied that H was gifting it to W. If it had been before 1985. Must be one of the items illustrated: yes. If there is not writing. Is there a writing? No i. Thus. but cannot MAKE one w/ such. Thus. Trial court & W conceded that it was substantial value. b. Rule: we don’t care about other concepts of contract law. b. on exam: examine from BOTH SIDES 8. Marriage-dependant test  look at income. ii. d. i.

Are they w/in some California CP system that has jurisdiction over them to bring in some CP scheme? a. and it doesn’t look like they got big gifts. ii. Is the property capable of being classified? iii. Talk to 1. or inheritance presumption incorrectly ii. property was We’ll never acquired during 1. Indirect Tracing Principle: tried to trace the house to SP by saying that the family bills took up marriages all W’s separate property funds. SP. REAL RULE: The presumption has the same force whether the marriage is a day old OR 60 BIG DEAL: Apply to any set years old. iii. wealthy when they got married. ii. the court was saying that the potentials for SP were not there. then died. Couples coming into Cali or leaving it. Plays into transmutation rules in that w/o a valid express declaration. and you can pretty much rule out sources of substantial SP. How to rebut that presumption? raised the i. First: Show that it was acquired during marriage *No state of title presumption. This case was more to show how you initially raise the presumption of CP. you this statute! 2. to tell us that length of v.Juliet Aftandilian 1. Mahoney: bought flight insurance for $1 then H died & named son as beneficiary. and now each spouse’s kids are show that the battling over property. Can that presumption be overcome or rebutted? IMPORTANT 1. showing 3. 2. Note: property is at issue due to CPC §6402. Issue: Was the property acquired during their marriage CP? can infer such w/o a. What is the art? 1. Rebuttal of a General Presumption by Tracing i. and we know they were not very during marriage. *No blanket presumption in favor of CP. During the marriage by gift. Example: property acquired during the marriage is presumed to be CP NOTE: They a. Then W died. and there was none. The stuff sitting around their house was probably their CP. Second: Trace back to some SP source 1. Rule: If you’ve got yourself a long marriage. its more likely than not that the court will infer that the property was acquired during the marriage. there are long 1. Point of case: BUT. Estate of Jolly: Everything went to W when H died. W could NOT definitively show that the property was acquired during the marriage. Is any form of apportionment appropriate? marriage is c. Traces back to SP this case. be tested on the marriage. b/c acquired during the marriage. acquired by gift. Wilson: Married from 1931-40. W/ no other evidence: CP. i. there needs to be the wife’s consent. A transmutation during the marriage here!!! Thus. Basically. proposition that to iii. Before the marriage 2. Fidelity v. married only few months. when ii. devise. Raising the General Presumption of Community Property irrelevant? i. which was bought with proceeds from stock.5 (Recapture provision). 5. Is the couple married or deemed to be married for the purposes of the system b. if art is bought using money from watch that was bought in 2004. If this was gift to the son. d. a. Is there a classification presumption applicable?(presumptions set the BOP) iv. gifts: what do we need to b. It can be inferred logically that the stuff was probably bought during the marriage. professor a. wife isn’t giving up her interest. Wilson v. . General rule: with life insurance (and other types of insurance). BOP should have actually been on son – to trace the dollar to SP! 3. bequest or device iii. categorically it was acquired 4. the beneficiary assignment is only good about making for the other ½ of the property. H&W bought a house during the marriage. a. Hypothetical: married 2002. of facts. Prenuptial agreement what the point of iv. But. bought some art during marriage. The court said that all the property had to have come before H’s death. Rule: without the other spouses prior consent. Jolly stands for the 2. it cannot go to the know named beneficiary w/o the other spouse’s consent. they were married for a very long time.

Juliet Aftandilian i. 1. and thus CP. 2. 8/1972. The right to receive the money was when the son died. ii. Where did stock come from? 1. Estate of Clark: Dad received settlement money from son’s estate who died before dad got married. What if stock had been bought in 2001 with earnings? i. Prefers). but § 771 allows for the presumption to be rebutted. ii. as gift from uncle. w/o being divorced. As long as that is it more than likely from where it came. people file a will contest because they’re getting the property some other way. but doesn’t have to be that way. and ½ hers. What is a legal separation: (something we don’t need here in §771) 1. Point: tracing doesn’t have to be exactly precise. ii. How to phrase: 1. Bramet: H & W separated & signed an agreement saying certain property after 3/1972 would be their SP. What if stocks were bought with earnings in 2003 from current earnings that were kept in separate account w/o her name? i. Court-adjudicated separation. III. d. a. Standard of proof: preponderance of the evidence standard. 3. Presumption: it was acquired during the marriage. During the period between separation and death/divorce. it traces back to the house. The Common Statutory Presumptions Respecting Separate Property a. since money acquired during the marriage. 1. and thus traced back to a time before the marriage when son died. A divorce. but for whatever reason. If given these facts on an exam. and thus is SP 4. H received 1/3 interest in Boss’s ranch. Adequately traced to SP. Downer v. By definition. determine spousal and child support rights 2. The general presumption is that it’s CP. most people didn’t have $1300 lying around. Issue: gift by boss (and thus SP) or something else (in lieu of pension plan & thus CP)? 1. settlement = similar to gift. but at that date. OR 2. which is before marriage. iii. during marriage. but easily rebutted because of the rule of what SP is (the one that Prof. i. iv. W now says property is CP. Hibernia Savings & Loan Society:Prior to marriage. W had 2 properties. there is a general presumption of CP. b. i. bequest. Rule: Look at which property we are trying to classify: start with that! 1. Thus. adequately traced to SP c. start with the bank account. i. where do we start? i. the better. What if son died after dad’s wedding? 1. b. because typically. Earned during marriage. they don’t want the divorce title. W’s heirs now have the BOP to trace where the money came from. it’s SP. Issue: money in bank account SP or CP? a. c. To trace the money back to SP: 1. or device. Holding: the right to sue arose prior to the marriage. Yes. and thus is presumed to be CP. Thus. Requirements for a legal gift: met here . which was before the marriage. sold & bought other property & put unknown money into accounts. this is SP. Could not show perfectly that money was from house. §771: Separation and divorce i. Thus. Thus. §770: Separate property of married person (page 81) i. 1. But is a settlement the same as a devise? i. Rule: tracing doesn’t have to be exact. If it was in 2003. a. and the more temporally close they are. go to court. Rule: inheritance (“devise”) is also SP so it would be SP anyway. a. w found out when he sold it. Yes. Freese v.

a. One spouse says: I’m leaving. Were no longer having sex iii. Wrote on daughter’s school’s paperwork that both parents lived at home w/ her (but this isn’t necessarily determinative). iv. but not divorced until 1975. Special Presumptions Based on the Form of Title A. Rule: generally. they clearly have no intent to actually divorce. One exception: if separated for years but it was never communicated. but the intent must be communicated. we’re not getting back together = sufficient. 1. Maintained his address there 3. Hypo: W leaves in 1971. this is the end. e. iii. no intent to get back together.e. BUT Evidence showed that it WAS a gift in lieu of pension plan 1. Not friends so not a gift. BUT occasionally. Hypotheticals i. They’re separated the day W left w/ the requisite intent. Rule: But. pensions are CP. Lack of consideration ii. Wasn’t sleeping in the same house 2. 3. It was for the work he had performed for his boss for all the years that they were married. Circumstantial evidence a lot of times. Rule: If one party has the requisite intent. Baragry: H left W in 1971. ii. retirement accounts accrue while the person works. usually the date when people realized they were “over. even if you say it clearly. H wins lottery. 1. ii. g. a. Took vacations 4. Rule: living separately. IV. Ultimate conclusion: not separated until 1975. v. Evidence for separation: 1. f. ii. and thus needs to be apportioned based on how much time the couple was together during the time the pension/retirement plan was accruing. Delivery b. then the SP standard is applied to both spouses. Rule: That will not be separation for purposes of §771 (rare). Thus. Point of separation forward. We’re done. it’s NOT a separation. One spouse must have the requisite intent.”\ 2. the property becomes SP forward. Doesn’t have to be a legal separation (i. i. and actions have to be consistent with that intent. by itself. Evidence against separation: 1. it seems like that would be sufficient. earnings up until 1975 were CP. adjudicated separation). W thinks he is just going to clear his mind 1. §771 Rule: Must be physical separation w/ some communicated intent not to resume a normal marital relationship. 1. H is holding on and wants to reconcile. 4 years of his earnings at issue. a. Hardin (Note 4 on page 94): filed for divorce purely for the shock value. ACQUISITIONS BY A MARRIED WOMAN . it’s used as shock-value by those who DON’T want a divorce but instead use it as a wake-up call. Took his laundry there 6. i. thus hidden intents don’t matter.Juliet Aftandilian a. b. They never socialized outside of work 2. Bills/voting 7. Rule: Only one spouse has to have the requisite intent. In re. Do we apply SP to the one who has the intent and CP to the other? i. Rule: MUST be communicated. B-ball games together 5. if someone is filing for divorce. i. Ate dinner at home every night 2. h. But when the separation occurred is probably harder to determine. isn’t sufficient. H leaves with hidden intent. They weren’t friends and they didn’t even play cards. 1. Logically. if you’re actions aren’t consistent.

the declarations of the alleged donor. Have to show that H had no intent to make it W’s SP. Example: To Wilma Jones and to Wanda: i. 1/1/75 – When MWSP was effective ii. Example: H and W. In Re Marriage of Ashodian: W flipped houses. §803: Married Woman’s Special Presumption (MWSP) – Property Acquired by Married Woman Before 1/1/75 (rebuttal presumption to CP Presumption) 1. that excuses [to defraud is usually not enough. and then W would rebut w/ this rule. Step Three: to rebut MWSP: a. thus could not have had the (1) Lack of intent to requisite intent. Note: there is NO married mans Special property presumption & no state of title presumption. Examples: a. intent IS relevant. If property given to W only = W’s SP. But. made either before or after the transfer. Case Rule: In determining this question of intention. intent?!?! i. the question of the intention of the H in executing such instrument becomes the all important and controlling question. and courts have NOT held that the fact that H was doing something bad or illegal doesn’t take away from showing H’s intent. When is 2. showing: 6. They get Thus.Juliet Aftandilian i. knowledge a. must have been intentionally. Both are married women. W then titled houses in her own name (pre-1975). presumption = her part is TIC.” Second date to remember: i. 1. If acquired by W and someone else. There has to be intent. he had abandoned sufficient the property & arguably gave her a gift. executed by the H to the W. 4. creditors] 7. iii. a. 2. and didn’t do anything about it. make it W’s SP. If acquired by H&W as “H&W” = CP. 3. but told her not to record it. 2. and there was tax problems that he stayed out of. . H would bring up that he didn’t even know about the property. so W’s SP. can rebut by divorced. so we’d want to apply the MWSP to both. It IS there respective SP’s. and didn’t do anything about it. 1. Horsman v. 1. Rebuttal of MWSP: tracing is not enough. Why have this presumption? Prior to 1975. They are ½ holders. There were two properties which he signed the grant deed to. Rule: Tracing to H’s CP or SP IS NOT ENOUGH. 8. but it’s their SP. (3) No knowledge constituted a gift to the W and changed the status of CP to that of SP of the W. Didn’t understand the business & didn’t want to be bothered w/ it. if the evidence shows that he did know about it. and H finds out about the property. Case Rule: Where it is claimed that an instrument in writing. If he didn’t know until after 1975. ii. just said didn’t know. so H has to show no intent or knowledge. b. H said he didn’t want to be bothered w/ the business. 3. i. Application of MWSP: Yes a. are admissible and such declarations need not have been made in the presence of the adverse party. i. creditors can’t get to it. man was in control. Step One: Acquired during marriage = CP. H is on a business trip.e. i. Knowledge: did he know or should have known? 1. Step Two: MWSP kicks in. that doesn’t necessarily show he had an intent. 5. it would fall back into the CP presumption. 10. But if H knew about it before 1975. prior to 1975 & in W’s name alone. but if it was after 1985. a. Then. Thus he puts everything in W’s name. so if property was in W’s name. and it’s in her name. title to property just says “Wanda smith. W uses CP to buy RE in her own name. (2) Unethical a. We do have the presumption: it’s before 1975. It DOES show lack of intent to make the property SP. 9. While H is gone. H is involved in risky business ventures and thinks if stuff isn’t in his name. have to ask if he made an implied transmutation. a. EVEN IF bought with community funds. Maden: H put property in W’s name. It would start with CP presumption.

§803(b): When Property become TIC interests 1. Hypothetical: H and W are both working. no intent to make it her SP. Rule: The only option H has when the title says “as her SP” is contract avoidability issues: fraud. it was out of convenience. the transmutation analysis comes in. 1. b. a. b. H could still rebut because he didn’t know that it said SP: he didn’t direct W to put it as testing area of Professor! her SP. but once time passes 1975. and his wife Wanda = sufficient description . a. since it’s more convenient right now to do it that way. Standard of Proof: (not in case but by CA SC) a preponderance of the evidence standard to show lack of intent to make it W’s SP. Donze v. Attributes of TIC i. 1. Title reads: “To W” a. 5. other ½ would be CP of both. or no?  a. 2. The presumption already makes it her SP. Analysis w/o 803(c): goes back to 803(b) and WMSP kicks in So this would be the analysis we do. vi. W would have ½ TIC. She is ½ TIC with Hal. vii. §803(c): When it’s CP 1. You can abandon your rights in property. more than a lack of intent needs to be shown. they could just be brother & sister. They are married but the title doesn’t say they are H and W. 1. Semi-conclusive MWSP: when the face of the document shows intent to make it W’s SP. and was purchased with their CP funds. Presumed to be CP since described as husband and wife . 2. so we just need to find sufficient evidence of lack of intent. Prior to 1975: MWSP as to each of them. Each has undivided ½ interest iii. Title says “to W. Then it wouldn’t be the super presumption and then only lack of intent would have to be shown. What if this was done w/o H’s knowledge? i. The analysis ends there: the ½ interest is the community property of both H and W Jones. We don’t need to find sufficient evidence of gift. Example 2: title reads “W and Hal Jones.” Both married.Juliet Aftandilian 3. and in effect. Title reads “to W as her SP” Favorite a. the ½ is her SP. so MWSP applies. b. No right of survivorship ii. 2. As to Hal: General CP presumption because it was purchased during his own marriage. b. iv. H says he cannot come to see it. Example 2: if we don’t know if they married: a. They have to be described as H & W. as her SP” upon the direction of H and his parents. 4. Donze: Property acquired by H &W. Example 1: Title says “W Smith and Hall Smith as W&H” a. Can be devised 2. H could probably show lack of intent. duress. and each gets ½ TIC. W is on a business trip in VT and finds a property . W would have ¾. H couldn’t rebut because he didn’t show lack of intent because he abandoned his rights and he sort of knew about them too (but not best case to illustrate). But why do we need 803(c) since the regular CP presumption also kicks in? i. and for W to put it in her name. but not to each other. As to W: during her own marriage and prior to 1975. or mistake: do we need to know elements of these?? 3. Hal Smith. It would not give rise to the super semi-conclusive presumption. Example: Title reads Wanda Smith and Hall Smith. thus to rebut the MWSP. They are from CA but like to ski in Vermont. otherwise.She writes to her H that she found a great cabin and wants to buy it. Holding: SP of W. Example given before: two married women’s names are on the title a. 6. i. So do you need knowledge & approval? v.

Similar to CP. Tenants in common a. takes away the rights of a ii. Usually 50/50 4. iii.Juliet Aftandilian ii. Hence. 1. It wouldn’t seem to matter which cotenancy it is b/c property will go to spouse either way. disliked because time & $$. and estate planning issues. Both spouses have to agree to transmute it to their divided ½’s. 2. the dead spouse’s ½ goes to the other spouse (through Courts don’t like JT’s b/c it right of survivorship). if any). 6. Rule: you cannot devise Joint Tenancy property. it remains 50/50. Can it be split differently by a judge? NO! C. If the will says: “my ½ of the house goes to Nate” property. i. The will is ineffective because: the landscape is good. CP: can one spouse do such a thing? Couples’ property is in JT. Rule: One spouse can unilaterally go to court & petition to get their ½ divided. With a will: to whoever you willed it to. 2. AT DEATH: i. Character of TIC: 1. CP: Biggest issue: cotenant. B. CP & JT: Undivided 50% interests ii. More or less protection depending on a CP or JT (but we’re not getting JT Issues: into this right now. Intestate: would go to the surviving spouse (and kids. Most people like JT because of the ROS (doesn’t go through probate). alienated. but the case law is messy. The typical problem we a. Hal Smith. There are also some creditor differences 1. b. but different creditor issue 2. Right to sever property: (usually not an issue though) 1.) (1) Is it really a JT? B. 1. 85% of California iii. the reason for lots of conflict. What if the will says all my property goes to my spouse? 1. but will be tested on slightly. 1. usually by titling it as such. . Joint Tenancies ii. most people don’t know what JT is. Example: H &W buy a house and they title it as “H & W as joint tenants” (usually at direction of realtor). tenancy or community b. AT DIVORCE: (2) Creditor issues (3) Separate property i. CP: 50/50 1. DURING MARRIAGE: i. Joint Tenancies (assuming it’s real JT) versus Community Property a. JT: 50/50 (done in divorce proceedings) contributions ii. Ways of holding property in joint form: 1. At divorce. NO right of survivorship. Different alienation provisions 3. are going to have is whether i. Not as much as focused on here. Probate = court supervised procedure to make sure the property is getting or not it’s really a joint administered the way it’s supposed to be. his wife = sufficient CONCURRENT ESTATES i. a. tax issues. Community Property 2. Nate actually gets nothing b/c of the ROS. Introduction to Joint Tenancies 1. Ownership 1. At death. JT: If all property is in JT. It’s a big problem: i. H & W can hold property as TIC. JT: Can one spouse terminate the JT? a. they cannot dispose of it at death. but it does matter because of creditor. Rule: They cannot go to court unilaterally to sever it. iv. What exactly? 3. it goes to wherever it got willed to. 5. and Wanda Smith.

not sufficient. During marriage . a. Lovetro v. for the purpose of the division of such property right now.” wanted to be able to give to kids if he died first. issue is what the classification of the note is. it’s confirmed (by statute) to be CP. Rule: Having the title in JT overrides the General CP presumption. the presumption may not be overcome by testimony about the hidden intention of one spouse. it’s 1984. 118)(From 1/184 & on) 1. The legislature basically said the public doesn’t know what they’re doing when they put their prop in JT so they enacted legislation that undoes/overrides the JT presumption of title. iii. like one. but not by tracing. though. the statute is applied. only to rebut. sold it & took out note that said H&W. ii. for his convenience. a. must be an agreement of the couple. 81 (and CCC §4800. Note: This CL approach is historical i. Rule: the agreement must be understood or known by BOTH spouses. Cannot be a unilateral agreement. 1. or implied. a. Yes.) 2. if W doesn’t know. a.Juliet Aftandilian c. (Tracing alone is not enough.e. Rule: conduct (ignorance) is also sufficient to show a lack of intent to make a JT. not retroactive divorces. but to take ROS if W died first. or combo of both) oral or written by an agreement or understanding to the contrary. b. Case Rule: There must be an agreement of some sort. despite being the title. Retroactive as when property was acquired. Estate of Levine: House was titled in JT “for convenience only. b. If the property was acquired before 1984. SFR Presumption: when a single family residence of a husband and wife is acquired by Two issues but for them during marriage as joint tenants. Upon dissolution of marriage (divorce!) iii. as JT’s. W’s ignorance as to JT’s effects AND the tracing of the proceeds to CP was enough to make an implied agreement that it was still CP and didn’t mean to change it. The SFR presumption was in effect between 1965-1983 (inclusive). undisclosed to the other spouse at the time of the conveyance. FIRST APPROACH: Common Law/Case Law Approach (before Cali Leg. THIRD APPROACH: CFC § 2580. ii. b. Got involved): 1. b. ALL property ii. SECOND APPROACH: Single Family Residence Presumption 1. These are dates when the SFRP was in effect but not related to when we’ll classify property according to this: whaaa??? 2. we’re upon divorce or separate maintenance only. a. Four Scenarios (the key to classifying property is defining the proper scenario). Case Law Rule: But. Can this statutory presumption of CP be rebutted to make the SFR really joint tenancy or each of their respective SP? i. a hidden intent is not sufficient. it can be rebutted. i. Thus. Introduction a. and it becomes a joint tenancy. i. In re. Steers: H had partnership. oral. and there was no agreement with H presumption but this approach serves (oral or written). i. effective date as 1987. Marriage of Lucas: Couple bought home in 1968 & then got divorced. Note: book says i.1) (pg. the presumption is that such single family just focusing on the residence is the community property of said husband & wife. i. SFR presumption i. Have to show that there was an agreement or understanding between the spouses (backwards to CL approach). In this case. §2580: the law has been very confusing and they have a compelling state interest for enacting this legislation (so ok to be applied retroactively). * There is NO state of title ii. Note: we won’t use this approach to classify. issue. §2581: Does NOT deal with death. i. but for our purposes 2. It can be rebutted BUT still applicable in certain situations today back to CP (or SP. Elements: i. if it’s a SFR titled in JT. Can be written. Even if the whole world knows. 1. W wanted it to be CP.

On the a. my SP. 1. Must be expressed & clear that it’s NOT CP but instead in JT or SP. H&W bought stock in 1983 and titled it in JT. CP (Presumption)  CP (statute)  SP/JT (any agreement. HYPOTHETICALS: 1. W died. Hilke: Married 1955-1989. a. Application: the general CP presumption applies (since during marriage)  CP despite being in JT title (because in the date of the statute). Must have a valid agreement re. Common Law 1. Now getting divorce: a. W’s argument: It’s not fair. went past 1/1/84 & issue = whether to apply retroactively. Can also be a clear statement in deed 1. Sought a divorce. if one dies retroactively! before the divorce is 3. a. a. ii. But if he had argued that the property was his SP. Remember: this is still only regarding DIVORCE cases a. c. How to rebut statutory presumption: a. the divorce retroactively b/c it’s contingent upon the spouse’s death. d. rules apply.Juliet Aftandilian iv. b. Divorce: a. and then it would rebutted to SP through oral agreement. Divorce rules apply because they got divorced first. Analysis: General CP presumption  Title in JT  Presumption of CP by statute  Every time we see a Rebuttable only with agreement in writing or clear statement in the deed that it is to fact pattern where the remain JT. some property interest. and statute affirms CP. and thus the statute CAN be applied immediately grants the divorce. It can only be rebutted by a writing. but oral agmt that it’s really HER SP. but oral agmt that it’s HER SP. it was. 1963. would be W’s SP. or implication) iii. Here. Presumed to be CP. Review of the Three Approaches FOR DIVORCE: SEE FLOWCHART! i. Rule: a right of survivorship is NOT a vested interest. Must be written agreement i. SFRP (1965-1983) 1. 3. b. Same fact pattern (w/ either property) a. understanding. Thus. c. The deed just saying. But oral agmt is sufficient to rebut to W’s SP. (that was valid at the time) then the law cannot be applied retroactively. Rule: if the spouse had a vested property interest taking into the law of that time. the death rules apply. it must say. “it is NOT community property. How do we know they had a vested right? finalized by the court. 4. we apply it retroactively?? b. H&W buy a home in 1983 and titled in JT. his whole interest was only in the ½. It would start as CP. Do we have facts for when such rank injustice is? vi. then it WOULD NOT be applicable other hand. In re. they purchased a house in 1969 and titled it in JT. He didn’t have interest in the other ½ until W died. Ignoring §2581: we’d be under CL approach (b/c that’s all that’s left) b. H’s argument: §2581 applies retroactively and that all property in JT is CP. In re. at the time we had oral agmt. Saying something like: this is JT and not CP. In joint form v. “joint tenancy” isn’t enough.” iv. or implication) ii. i. Creates problem: do we or don’t i. and there is none here. in fact. then they divorced. understanding. §2580/2581 (1/1/84) . Presumed to be CP 3. On appeal. granted the divorce & before property issues resolved. v. Marriage of Buol: Married 1943-77. court bifurcates & 2. It is NOT important that the statute says it’s a CSI. it still needs to actually cure such a rank injustice. bought home w/ her SP and titled in JT. W had wages and had an oral agreement that it would be her SP (effective transmutation pre 1985). 2. CP (Presumption)  JT (CL/title)  SP/CP (any agreement. It’s just like the SFRP but it’s expanded to all property. 1. Ignoring §2581: we’d be under SFRP. then title would rebut it.

post 1/1/85. 1. REMINDER: if $100. IS applied retroactively. Rule: an education is NOT an asset capable of being classified.1) 1. JT. Here. Pre-CFC Rule 1. but for tax purposes. f. SFRP and § 2581 don’t apply to death. the only thing left is the CL approach. Rule: If applying the CL approach to an agreement made POST 1/1/85.000 is spent on the education. w/o the need for probate. and always okay. not just a change in = career) . Reasoning: the legislature didn’t want people to be disadvantaged by tax rules iii. Kids say that notwithstanding title. i. CP (presumption)  JT (CL/title)  CP/SP (any agreement. Estate of Bibb you have title that say “this is i. In effect: When one spouse dies. through the statute! ~~~~~~~~~~~~~~~~~PRACTICE WITH PROBLEM SET! (ANSWERS IN CP FOLDER)~~~~~~~~~~~~~~~~~ CHAPTER THREE: LIMITATIONS ON THE CLASSIFICATION PROCESS I. But the CL’s approach of rebutting the JT back to CP = transmutations. had home bought during marriage that was titled in JT. “CP with right of survivorship” occurring on or post 7/1/01. (For ex: was a student at the outset. Then filed for divorce. 1. Enacted for all DIVORCES (post 1/1/85) (but we won’t need to know this date). it immediately goes to the surviving spouse. or clear statement in the deed. Estate of Blair: Married 1965-85. If you title something in JT. 3. What is required for this reimbursement? §2641(b)(1) a. it’s CP and they get ½. Rule: title documents are valid transmutations b/c it IS an express declaration. giving his kids all his property. ii. Supposed to apply retroactively: a. it’s not a beneficiary form.) 2. it has statutes where title needs to say. ii. so if c. express declaration rule kicks in. it’s community property. Property within the System (Is the property capable of being classified?) a. Hypo: H & W take property in JT. Education and Increased Earning Capacity i. or SEE FLOWCHART! implication) 2.1: Community Property with Right of Survivorship (effective 7/1/01) i. CCC § 682. a. Transmutations Approach a. there is no be a valid writing w/ an express declaration to be a valid transmutation as well? presumption that JT =CP. does that need to CP. NOT b. Note: different from divorce i. ii. once you have JT then you’re stuck until you have an ED saying otherwise. 1. a. W died before it was final. in the 3rd approach. Testable material: READ 1. H dies. Rule: only applies title that says. 2. that we to be a writing with an express declaration changing the nature of the property. Recognized the practical problem of valuing a legal education. Todd v. When it cannot: when it IS taking away a vested interest e. When it can: not taking away a vested interest b. Classifying Joint Tenancies FOR DEATH: i. understanding. Todd: character of legal education & legal practice property at issue. ii. Technically possible but would result in battle appraisers. if you’re after 1/1/85. CP (presumption)  CP (statute)  JT/SP (rebut – written agreement: that it’s NOT CP. California Family Code §2641 (same as California Civil Code §4800. it related directly to the property. a. it’s to the point. The education or training MUST: substantially enhance the earning capacity of the party. Common Law Approach: a. Read how the spouse can prevent the title from taking effect. Hypo: H &W buy home in 2006 with CP. despite being short. the working spouse only gets HALF. However. so it provided for reimbursement to the community for the community expenditure rather than division of the education asset. It’s not a tangential writing. a. However. Thus. really mean for this to JT.Juliet Aftandilian 1.” this is enough. W says it’s JT and all hers.

it’s presumed that the community has not benefited from the education. How do we value such an asset upon dissolution? a. education & 1. ii. 6. 10. Good will: value of the patronage. got married in 1957. books. professor to a. most everything except above fits in. Rule: The CP presumption applies as usual. 4. Generally non-student loans acquired during the marriage and treated as community debt the same way as assets are. b. living costs. i. devising the ½ interest he or she thinks she has in the education. 1. surviving spouse gets zero. Rule: But courts have discretion [ONLY] to reduce the reimbursement amount if they wish (for ex: if educated spouse has legit reason for not taking advantage). the devisee gets zero. and thus it is included Ask in the valuation of a business practice. In re. & it is CP unless traced to something else. Two situations and Todd v. Rule: A degree and education is not capable of being classified. Todd v. working spouse dies. properly divide up b. Educated spouse dies. the higher the community interest. §2641(b)(2): Student Loans a. a. the greater the community share. H went to school & paid for his own books.Juliet Aftandilian i. 9. but W paid all living expenses. b.. NOT living defines what expenses. Todd: Practice was started during their marriage. Apportionment is then required. Educated spouse survives. §2641(e): Subject to Agreement discretion: a. 7. iii. ALWAYS subject to court discretion to decrease. the court SHOULD HAVE SAID: only the loans that the loans. Rule: Subject to the express written agreement by the parties to the contrary. Point: must have contributed to something they will reap the benefits from. etc. etc). Must have a WRITTEN waiver (could possibly be letters. but it doesn’t 2. 2. generally. Marriage of Lopez: practice started in 1953 (SP). judge’s 8. a. RuleX: If spouse doesn’t take advantage of their higher earning potential. Spouse is contributing community efforts once they get married. c. still have to reimburse. tuition. Rule: a legal practice IS generally classifiable. ii. emails. and the rest remained the duty of both. school parking. Rebuttable Presumption: if the divorce is w/in 10 years [of the time of payment for] of Read other reasons for the education. etc. Life Insurance (see mini life insurance lesson) . Rule: a loan incurred during marriage for the education or training of a party shall not be included among the liabilities of the community for the purpose of division pursuant to this division but shall be assigned for payment by the party. NOT meals. What does “costs associated with education or training” mean? Good case in that it i. training expenses are. no earning potential realized. were used directly for the education should have been assigned to H. 2. page 129!! i. H also had loans in his own name. Rule: Todd v. §2641(C): Reduction & Modification ~ Discretion of Judge a. and thus is not an interest than can be devised. Rule: good will is an asset capable of being classified w/in the CP system. tuition. Legal Practices i. In respect to the loan assignment. The reimbursement will also be paid plus interest (CA = 10%) 5. Marriage of Watt: H&W married 1972-81. Rule: the costs have to be directly related to the education process. Todd applies in both: i. The good will was acquired during the marriage i. and thus raised CP presumption. 2. a. What applies upon DEATH? 1. Just because the practice started before the marriage. If there is a community interest in it. Todd applies a. the reputation go through this 3. because such would be incurred anyway. doesn’t mean that the WHOLE practice is SP. 1.e.

a. the policy = SP and beneficiary gets all the policy proceeds. it would all be H’s SP to the ben.000 (1/2 of CP share) and W get $100. but this is not the typical case. The insurance company cannot say no they don’t want to insure you because you have an illness.000 that is CP. since the policy is for $1M. a. 2.000 & $100. As to argument that CP paid for 9 years: they got what they paid for. 4. Thus. General rule: with term life insurance. Either the policy was paid for before marriage with SP funds. Basic issue: one spouse takes out life insurance for a $1M policy. WHOLE LIFE INSURANCE (ex. CP: 9/10 = 90% 1. ii. c. i. Hypo: Insured dies and has E named as beneficiary a. term insurance is only good for that term.000/2 = $450. a. as to hypo 1: i. 5. they only paid for that particular year’s coverage and they got what they paid for. Thus. SS gets ½ interest in the policy. a. ii. beneficiary gets ½ of community & all of separate share: a. i. Rule: Some of the proceeds should go to the SP contribution that kept the right of renewability in force. Marriage until death (5 years): paid for with CP. Last payment was CP. Last payment was SP. Between policy acquisition and marriage (2 years): SP paid for premiums c.000 (1/2 of CP). and 2000/10. the policy = CP and beneficiary gets ½ the policy. you have the right to renew. Rule: must apportion based on time. UNINSURABILITY (TERM INSURANCE ONLY) 1. 2. Rule: life insurance and its proceeds ARE an asset and capable of being classified. Apportionment i. We have 8000/10000 which is SP. v. Between separation & death (1 year): premiums paid for by SP. Between policy & separation (9 years): premiums paid for by CP b. Marriage of Spengler: Marriage  policy  uninsurable  separation  death. and w/o consent of beneficiary assignment. Hypo 2: Marriage  policy  non-legal separation a. 80% is SP and 20% is CP. b. SS says that it was bought & paid for w/ community funds. TERM LIFE INSURANCE DIVISION: 1. Rule: If you have an illness and then try to go get insurance. iv. $550. b.Juliet Aftandilian i. and he kept it insurable through his SP payments so last payment rule shouldn’t apply. Thus. General Last Payment Rule: the character of the last payment that kept that policy in force controls how the policy is classified. Hypo 1: Policy     marriage    death. Rule: applied the last payment rule (paid with SP so it would all be SP) despite the insurability rule above. then surviving spouse and beneficiary argue over it. they CAN deny you insurance. Thus. Policy until marriage: paid for with SP. . As to hypo 2: i. and there was a valid transmutation to beneficiary. if you get a terminal illness.000 tot. iii. insured gets cancer) marriage   death a.000 b. $1000/year) 1. The insurance is ii. If it was 1985. SP: gets 10% of million = $100. divided differently depending on whether it is whole or term life insurance. Beneficiary says last 8 years were paid by him. Policy (2 yrs B4 marriage. SP: 1/10 =10% ii. 2.000. you become uninsurable. or it was bought during marriage with CP funds. Between marriage & death (8 years): CP paid for premiums b. In re. CP: gets ½ of 90% = $900. Rule: the right to renew has value (contrary to what Spengler said). 3. H (his beneficiary) gets $800. but insured just didn’t die during that term. i.e. spouse names someone other than surviving spouse as beneficiary.

d. The Valid Marriage Requirement: Putative Marriages i. 1. So why do they say that? i. Notion was that they had received a lot of warning. etc applied retroactively. Bottom line: TRUE CP is the exclusive domain. Rule: community property rules DO NOT apply. Courts used equitable principles to give wife ½ of H’s property since she had a acquired during the RGF belief that their marriage was valid. They know or should know that there was no legal marriage or DP. Persons within the System a. d. basically the terms are California that allow for valid interchangeable. Hafner below) : if H and Helen ii. Fam. Damage awards may receive different treatment upon divorce. and what you had all this (2) Person didn’t have authority to marry couple time. marriages b. have to factor in the uninsurability of the insured. Big deal: what changed on 1/1/05: created community property for DP? of the same sex. the laws are changing (1) 2 wives at one time dramatically regarding what you have. 1. they said that the right of renewability didn’t belong to the insured. Bottom line: True community property can only be obtained through either a legal marriage. and thus the last payment rule applied. experts would come in to show how the assets get divided. If it was his policy. there was a “warning letter” marriage or DP: sent to all DP’s saying that saying 1/1/05. i. OR through a valid CA domestic partnership. can ignore the uninsurability. it wasn’t his own life insurance. and thus it is NOT a valid marriage in CA. he didn’t go buy it. ii. Rule: California DOES recognize someone who is validly married in another jurisdiction 1. were legally married 1. Point to how legislature was enacted. Side Note (re. Proponents of retroactivity (R/A): a. and there were no other 2. Coates v. c.Juliet Aftandilian b. Thus. UPON DIVORCE: spouses. Thus. no statutes in a. Ways to create invalid effective in 2005. I. Code §297. During this time. It was passed in 2003.5: subject to same rights & responsibilities as spouses. The employer did it. Retroactive issue: no case law has decided conclusively yet. A valid CA domestic partnership. and if you do nothing. Versus: a Meretricious relationship (on essay or MPC?) i. i. . he would have had that right of renewability. Contrary to outlines and this case: uninsurability DOES matter in regards to classifying life insurance policies. if they have a common law marriage in one of those states (both CP) and then come to CA. can only arise in situations where there is: 1. apportionment wouldn’t apply. Cal. Rule: There is NOT such a thing in California. On the test: if it’s an employer policy. c. However. the tort action recovery would be a. But if it’s a personal policy (which is more likely). 2. ii. but the company gave him this life insurance as a fringe benefit. Professor thinks there are a lot of problems if it were R/A. Definition: At least one spouse has a reasonable good faith (RGF) belief in the validity of the marriage a. thus it doesn’t matter. Putative relationship (can exist for both a married couple or a DP 1. 14 states do allow common-law marriages. Marvin: might have rights thru K law but not tested on. Note: 2007 tax year for CA taxes. Fam. Common-law marriage (living together after 7 years) 1. b. Neither spouse has a reasonable good faith belief in the marriage. Have exactly the same rights of CP as to married H & W’s. marriage. you’ll still be DP’s but the law is (3) Lack of capacity. considered CP if i. DP’s will be able to file joint tax returns. Legally married husband and wife Note: there are 2. (Professor will tell us if we have a legal marriage or not). Code §297: definition of domestic partners (DP’s) [use LN’s version] between people i. Coates: marriage was invalid b/c W was infertile and divorced. Cal. so they had the right of renewability. ii. b. ii. CA does recognize it.

@ same time. Rule: Look at the facts & circumstances. i. n/a 0 ( = QMP b/c GFB in and legitimate marriage) H’s ½ (kids get nothing from CP) TOTAL: 200% 100% 33% 66% Appellate Court’s Decision 50% 1. NOTE: Whenever there is not necessarily just 2). 1/6 1/3 Thus. have received otherwise. as if they were valid H&W. Helen W Kids W’s Perspective n/a 1/3 (by intestate succession 2/3 (divided by 4 kids) ( = H’s SP b/c they were rules) separated) Helen’s Perspective Helen’s own ½ of the QMP. If Helen died and H was alive (who obviously didn’t have the GFB) then it would probably be held against him in dividing property. all the SP would be H’s and there would be no competing claims. There is no def. Estate of Hafner: H&W not divorced. 1. Prop acquired during a putative relationship = quasi-MARITAL property. There would be three competing claims. ii. both 1/2’s to her. code for death : b. H legally married to W (3 kids). UPON DEATH: a. thus. From W’s perspective: would be SP that was acquired after the separation. 2nd wife had a RGF belief that H was divorced. H remarries but said he was divorced. W2: all QMP. If there was a divorce instead of a death (divorced W after marrying Helen)? i. 3. Ignorance of the law is not RGF belief. Deceased spouse’s SP: the same as in CP intestate succession rules (above). What if H left Helen. What if H died WITH a will that said he wanted to give everything to X? i. QMP is treated the same as CP. Thus. and then got remarried? i. The law did not tell them whose claim was superior. look for 1. figure out as to each of them separately. they used another spouse (be it a legal spouse or another putative equitable principles to resolve the issue. No competing interest & same answer as above. What is a reasonable good faith belief? does this i. had 2nd W (w/ 4 kids). Went on for 24 years. Rule: divide the otherwise deserved interest by the # of competing interests (i. d. 2. it’s only because H died intestate that we had these competing claims! HYPOTHETICALS a. CFC §2251: Status of Putative Spouse (pg. and gave ½ of what they would spouse). i. W1: true CP. and neither wife knew about the other (Vargas/Bar Question). intestate succession rules for spouses same. i. 4. both ½’s to her. Estate of Leslie: marriage invalid b/c not recorded properly. c. From each spouse’s perspective 1. SUCCESSIVE BIGAMOUS RELATIONSHIPS a. 160. e. Deceased spouse’s CP: subject to § 2251 above. does NOT include those who think they have valid CL marriage. H received settlement during 2nd. b. From Helen’s perspective: QMP ii. arose from Coates) i. and it CAN be devised to whoever he wants. got divorced. From W’s perspective: SP. matter>purpose 1. a putative spouse. .e. one spouse died. and then divide by 3 (b/c now there would be 300%).Juliet Aftandilian b. For death & divorce. in the probate 1. s 2. thus all SP goes to X.

no more person. Issue 2: Couples migrating to California 1. means you’re resident there (registered to vote there. some This is all sort of equitable distribution doctrine kicks in and H would likely still get ½. What to do: go to the other state and open an ancillary probate (with a local How to get around this problem: Do a revocable trust instead of a will lawyer) for the decedent. review willing everything to her sister in Kansas. §2660 doesn’t apply to death. family. They retire. Note: personal property is never at issue upon death or divorce. H’s heirs would get nothing. There is also an in personam jurisdiction problem now b/c there is state. b. ii. 2. QCP = all property that would have been CP had they been in CA becomes QCP UPON DIVORCE. 1. will tell us). If W dies. UPON DIVORCE: CFC §2660 (page 706) use the in personam jurisdiction to make parties take certain action: a. 2. earned salary. each worth $100K. while domiciled still in CA b. Addison). c. the property changes from W’s SP to their QCP. he’d pick his elected share because will says he gets weeks!! nothing. CFC § 760: all property…wherever situated (countries/states)…is community property. Rule: property is STILL all W’s (See Addison v. 101): Quasi-Community Property (pg. If H dies in Kansas. 4. They are both still CP. banking. the domicile state (thus. iii. because they were acquired during the marriage. and where they plan to stay. If they divorce in Kansas. (b): if such a division cannot take place… doesn’t change the analysis. (b)(2): Or could require the W to pay out $50K to H. This is NOT before the divorce. spousal protection schemes only apply to spouses and thus. The Domicile Requirement i. we just need to property to her sister. 1. 2. come to CA. ii. ties. Fam. Hypo: H&W have one property in Idaho in W’s name for $100K. Here. will use the law of to your trust (but we won’t be tested on trust principles). W dies first. Problem: CA has in personam jurisdiction over the parties. the courts don’t get involved. use CP for CA. Most states: choice of law rules at death that say if you have and your property is applied according property of a person not domiciled in the state. court has such authority. (a): Hypo: two properties in two other states. and is treated like CP. where they really consider home. 3. Hypo: H&W have property in another state. First question that state will ask is choice of law: applies. know that if they are i.Juliet Aftandilian Each got ½ of what they should’ve received (following logic of Hafner). (b)(1): use in personam juris. a place a person plans to return if they’re absent. to live the rest of their lives there. to make W to execute a deed. etc) (but Prof. Issue 1: Domiciled in CA but buy property outside of CA. Note: still saying its CP. Classification of Property Upon DIVORCE: a. and then you can state what law i. . Kansas is a CL jurisdiction. but just dividing it more easily. UPON DEATH: Note: we won’t be a. The local courts would then divide the property. Now whose property is it? a. deeding ½ the property to H. Definition of domicile: the place where a person lives. CA = CP). c. Code § 125 (CPC §66. one in W’s name. 3. Hypo 2: Same couple get to California. property while out of state i. and W has worked. bought property ($2M which is thus all W’s SP in Kansas). and there is an in rem jurisdiction using laws of domicile problem. 1. devising her tested on choice of law rules. H would still get a forced elected share: could from first choose what’s in will or his share. i. and then H can QCP! It’s CP! take deed to Idaho recorder. but no in rem jurisdiction over the property. 214) i. Hypo 1: couple married for 38 years in Kansas. Cal. one in H’s name. The court just splits it up in such a way as to not affect the Note: buying the out of state nature/interest in the property.

H adds salary (CP) of $5K. Presumptively: house = CP because acquired during marriage. b. W had no property so there was nothing to be CP. Hypo 1: Bank acct opened during marriage (presumed CP). b. Rule: CP doesn’t work to take away property from surviving spouse to deceased spouse. Moved to CA. but again can trace that ½ came from SP and thus W would get $10K. Tracing issue: hard to do. H gets ½ and W has ½ to devise. Deposit of SP & w/drawal for same/similar amount. Not exact same language as § 125 but same effect. just recognizing the in rem jurisdictional issue. 2nd step: show that it was your intent at the time of w/drawal to w/draw SP funds to purchase the asset. Rule: Normal tracing rules apply. i. a. c. probably by an accountant. but lots of deposits are made along the way and it ends at $20K. Cal. still apply QCP to out of state property. 1. At this point we are hopelessly commingled unless all the D & W’s have been noted. Account was made during marriage so presumptively CP. alone. of A. nothing’s been added but now interest makes it $20K 1. DIRECT TRACING i. Thus. what would help: a. In re marriage of Mix: b/a w/ W’s SP & CP. and thus would have been CP had they been in CA. ii. lots of couples fail. d. Most accounts don’t happen this way though: funds aren’t usually put in on the same day and then never touched. Divorcing. 1st step: show an accurate accounting to show that there were enough SP funds to pay for the asset (most people fail this step). a. made lots of deposits AND lots of withdrawals. Rule: An accurate accounting. Option 1 to Resolve Commingling Issue: Direct Tracing i. Hypo 2: Same b/a. Same bank account. iii. but it could be done).Juliet Aftandilian 4. ii. ½ their CP. § 101: The QCP does not just change to QCP when they cross the border. Rule: Tracing rules still apply normally. It only applies to decedent’s property that would have been CP. c. Court’s found W adequately traced the funds back to SP by: a. a.: H had SP during marriage. W adds $5000 of her SP. account is also presumed CP. Note: no w/drawals yet. Probate Code § 66 c. In this hypo. then W died i. Intent isn’t always believed. W had $2 million in assets. QCP only applies to the property of the dying spouse Result: puts them back on par w/ their own jurisdiction. Hypo 3: Same b/a. COMMINGLED FUNDS (Mixing together different types of property (very common)). One last withdraw takes place and goes to buy some real estate in cash and the RE appreciates in value and now divorce and need to classify. Easy to trace – would be ½ W’s SP. Classification of Property Upon DEATH: a. Thus results in same result they would have had if they stayed in Ohio. then could commingle (would take a lot of work. Note in the memo line of check saying SP. b. Hypo 4: W&H come from Ohio. 1. How contemporaneous things are a. 1. bought property w/ b/a money. they move to CA and then W dies. i. Paley v. B. Upon death: was all earned during the marriage. If you have a death with a migrating couple: always ask  who is dying. CHAPTER 4: SELECTED PROBLEMS IN CLASSIFICATION (To fit in classification of property in Popovich’s scheme) I. b. 1. If there are details of when the contributions were made. . i. is not enough. Typical question: classification of what has been purchased w/ the funds in the account. 1. d.

2. II. the presumption that the whole thing is CP doesn’t really apply and they would probably carve out that CP amount maybe + interest and then grant the rest as SP. Side-note: what factors make a business grow? 1. iv. c. In re Marriage of Frick: B/a w/ H’s SP from hotel & CP. EVEN IF NOT GIVEN VC #’S. Generally: the CP funds were exhausted. Hypo 1 (handout): the $5000 w/drawal has to have come from SP because the $10. Letter to other spouse saying what they’re doing. Remainder = $500K . then CP is contributing to the SP (i. 1. Rule (later): If you pay off SP loan w/ CP funds. b.e. Option 2 to Resolve Commingling Issue: Indirect (Exhaustive) Tracing i.000 = SP 3. Have to show that there were sufficient SP funds at all times to make those w/drawals. bus. 1. iv. Separate funds are deemed to be used for community expenses only when community funds are exhausted. Note: In this case. STILL EXPLAIN BOTH. could be the underlying business itself (SP) 2. 1. $50K = SP to start. If there is just one week’s worth of CP funds. HYPO: solve for W’s SP (with 10% as rate of return. Remainder: $350K = SP d. iii. a. prof. a. buying a share of it). iii. Hypo 1: W started business  then got married (bus. See v. assume W is sole bus. If this is a law firm & the chief contributing factor is likely the efforts of the spouse during the marriage (versus the desks. fair value to community efforts) i. Rule: cannot show it based on total period of time. assume FMV (fair market value) for services are $30. v. family expenses > CP. On EXAM: DISCUSS BOTH AND MAKE A PLAUSIBLE ARGUMENT FOR ONE SIDE BASED ON THE FACTS. ii. H brought property w/ funds and couldn’t directly trace.$75K = $425K = CP (divided in ½). a. Use the Pereira approach b/c most CP share. Fair return = $50K + 10%/year ($5000 x 5 years = $25. not compounded) only use if given no other#?? 1. Thus.Juliet Aftandilian e. Hypo 2: H then tried to apply indirect tracing by saying that over the entire marriage. If the chief contributing factor (growth in spite of the spouse’s efforts) was the underlying asset: had to be in the right place at the right time and it grew by itself. assuming no salary yet? i. Worker & no w/drawals from bus. When do we use each method i. How much is community entitled to.000/year. Van Camp Approach: (approaches it from the other side. See: acct w/ CP and SP. so what’s left is SP. etc): 1. Worth $50K. i. Pereira: gives greater amount to CP! Van Camp: gives greater amount to SP! BUSINESS PROFITS (apportionment) a. Have to show every day & every dollar between the deposit & w/drawal. What if we have a little piece of something that has been CP? 1. Here. H didn’t show step 1 (accounting) and thus argument automatically failed. chairs.000) = $75. ii. a.000 w/drawal exhausted all of the CP funds. Efforts during marriage (CP) b. Worth $500K  divorce or death. ii. profits)  5 years later. Note: having good will doesn’t change how which approach to use. $30K x 5 years = $150K. Use the Van Camp approach b/c most SP share. 2. What do we do if we have salary withdrawals? . 1. WILL give us a number. Family Expense Presumption (just in this tracing area): available community funds are presumed to be used for family?? expenses. Pereira Approach (solves for the underlying asset (SP) and then remainder is CP) i. $150K = CP ii. books. made regular w/drawals to SP loan. have to keep a running total.

ii. DON’T use this: use Pereira and Van Camp. Value the separate efforts during the 4 years of separation a. bus. b. Subtract the salary w/drawals from the FMV determined. iii. and the balance is separate. 1. and thus no growth had to do with the underlying asset. 1. Each spouse gets ½. Separate Property Contributions to Community Property Assets a. ii. Marriage  business is started with CP funds  separation (NOT a divorce). How to choose: again. All-Cash Examples (where property is purchased with all cash) i. 1. but wouldn’t get reimbursed. But what about everything afterwards? a.000 . started w/ SP? b. CP has again received all they’re supposed to.000 = $22.000. 2. The efforts are SP b/c during period of separation. Community share is $10. made argument that asset should be valued as of time of separation rather than divorce. The contribution disappears and is deemed a gift to the community.$14. worth $50K. Fair return: 10%/year = $1000 x 4 = $4000. Lucas rule applied: $400K = CP. I. . CONTRIBUTIONS TO OPPOSITELY CLASSIFIED ASSETS (NOT IN BOOK) (NOTE: Every time we see a business. and W wants 20% of $400K as her SP. Remainder: $50. i. Made sense in the case. UPON DIVORCE a. ii.000. Hypo 1: 1970. Facts: was a law firm business. on EXAM. a. implied or written agreement to the contrary.000/ year? a. Pereira: not an issue in Pereira b/c the remainder is CP anyway. ii. Divorce: value assets as closest to date of divorce. ii. 3. Fair salary was $7000/year. What if W had w/drawn MORE than the efforts? a. Reverse Pereira & Van Camp Approaches (Imperato) i. worth $10K  4 years go by where H works on bus. Then the community had already benefited from their efforts. 2. Death: always valued at death b. House is titled in CP/JT. $7000 x 4 years = $28. ii. alone  death or divorce. i. absent an oral. i. Duncan.000 . Reverse Van Camp Method 1.000 = SP. Rule: If a spouse contributes SP to an asset which is titled in some joint from of ownership (JT OR CP). bus. This is for all other assets.000 i. $10K at separation = CP. house is purchased for $100K cash during the marriage (CP) but the house was purchased with $20K cash of W’s SP and $80K cash CP. The remainder is CP: $50. Valuing of assets a. What if W had w/drawn $30. do both and decide which is best iv.000 + $4000 = $14.Juliet Aftandilian What about if there is a marriage & then bus.000 = $36. 2006: worth $400 & death or divorce. Lucas Rule (pre 1/1/84 Rule): i.$28. What if salary w/drawals were $20K/year? a. H argues all CP. Solve for the underlying asset. Issue: What happens to W’s separate property cash contribution? 1. Reverse Pereira Approach: 1. and had nothing left to claim from the business. there is no reason to believe that such spouse retains a SP interest in the jointly held property. What to know from Duncan? Van Camp (fair salary still $30K/year). Basically said the fair rate of return was zero. because H successfully argues that the business was all to do his efforts and had not value other than him. Rule: Imperato has NOT been overruled by Duncan v.

Typically. Cannot be applied retroactively so same as above: 1. (also saw this in life insurance) b. ii. spouse receives reimbursement. H paid $1000 first  marriage  H then makes 9 $1000 payments to loan. Thus. Loan Examples (where property is purchased with loan & cash) i. b. thus tracing principle doesn’t work in the same way here. Heikes Rule: § 2640 CANNOT be applied retroactively despite what the statute says. right? 1. a. Presumption: the 9 payments after marriage are deemed CP (then current earnings). oral agreements are valid in this situation. the contribution disappears. Hypo 1: property acquired during marriage (with $20K cash and $80K loan) ii. In hypo: the asset is owned 1/10 by SP and 9/10 by CP. b. since there are no statutes saying otherwise. 2. Pre 1/1/84: Lucas applies. Regardless of the date. UPON DEATH: Lucas applies? II. then the agreement is upheld. 1. c. 2. lender is going to base their decision on salary (= CP) 1. Also applies to down payments & improvements (but we’ll see this See problem handout later). the proceeds from those borrowed funds will be classified according to intent of lender. On/After 1/184: §2640 applies. Rule: §852(d) does NOT apply for commingled or otherwise combined funds. iii. Issue 2: Assuming one spouse makes SP contributions to CP loan. 2. community owns that %. Credit = earning capacity = CP. 2. If you acquire loan during marriage. If the asset now is worth $500K. General CP presumption applies. Moore/Marsden Rule (takes into consideration appreciation of asset before marriage): . if there is an oral.Juliet Aftandilian ii. Balance is CP. the contributions are gift and disappear. and I’m getting it back. Look to what the lender intended to get paid from in okay the loan (SP or CP) i. CP = $450K and SP = $50K. W Should say: I’m putting this SP in. COMMUNITY CONTRIBUTIONS TO SEPARATE PROPERTY ASSET a. b. Rule: do NOT look to what is securing the loan to determine classification. d. but if no agreement. 1. Loan Example (SP when loan acquired but CP contributions to loan post marriage) i. Note: §852 (tough transmutations) doesn’t apply. i. Issue 1: classification of the loan & proceeds therefrom 1. SP example: salary actually comes from dividends from SP. but then had CP contributions to SP asset. community gets pro rata share absent an oral or written agreement (regardless of date?) a. UPON DIVORCE a. To do so would be taking away a vested property right. 1. §2640 DO ii. Rule: Lucas applies. Hypo: H buys asset for $10K but NOT w/ all cash. UPON DEATH and DIVORCE: NOT apply! 1. what is state of such contributions? 1. But it started Lucas and out as SP. Rule: the CP contributions are NOT gifts to SP. b. UPON DEATH a. Note: if court says “we’re relying on personal credit of W to secure this loan” i. written. Legislative Response (1/1/84 & on) § 2640 i. 2. §2640 applies: loan = a SP contribution to a CP asset (the loan) i. Presumption rebutted by: Intent of Lender Test  a. absent a written waiver of the right of reimbursement. Rather. Opposite Lucas rule: spouse who made SP contribution receives that money back (only that exact amount!!). or implied agreement. even after 1/185. Determine how much principle was paid off with CP funds. What about if spouse didn’t answer one way or another? iii. Loan acquired during marriage so deemed CP. they buy into the asset (pay for some of it): i.

H has a SP house before marriage (inherited it. Wolfe Rule: the community IS entitled to some form of reimbursement ABSENT any (same rule agreement to the contrary. c. Very different than CP assets BUYING INTO SP assets. ii. IMPROVEMENTS MADE TO EXISTING ASSET a. DIVORCE: new section § 2640(c) (since 7/9/04) i. ii. Rule: ABSENT written waiver to contrary. If SP is used for improvement (most common: one spouse gets their inheritance): 1. Regardless of improvement increases in value. On or after 7/9/04  apply §2640. On or after 1/1/84: improvements get reimbursement (§2640) i. iii. becomes a fixture. Lucas applies & it’s gone. Straight reimbursement b. Before 1/1/84: improvement is gone. But what kind of reimbursement? according to statute??) 1. b. DEATH: No statutes apply so Lucas applies: a. whichever is greater. b. 2. Issue: Does community property get an interest? §2640 does 1. DIVORCE: a. . whatever) 1. III. Community property asset improved with SP i.Juliet Aftandilian a. does NOT work same as loans. How much you put in OR how much the improvement increased overall value. Separate property asset (of either spouse) improved with CP assets i. deemed a gift. If W uses her SP to improve  a. The improvements are deemed a gift and are gone. Don’t need to know calculations. Separate property asset improved with SP of other spouse i. DEATH: Statute doesn’t apply. ii. reimbursement. b. DEATH and DIVORCE: NOT apply a. b. paid it all of before marriage. Other spouse does NOT get value of appreciation before marriage. Law is unsettled: a. but not i. Before 7/9/04  does NOT apply retroactively so SP contribution to other spouse’s SP asset is deemed gift. ABSENT any (oral or written) agreement to the contrary. just make mention of it on exam. Hypo: W’s separate property house is improved with CP.

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