California Law For The Bar

Front 1

Characterization of Property - things to ask

Back 1

1. when was asset acquired?
2. How was asset acquired? Source? Labor or gift?
3. Is there a legal presumption affecting the character?
4. Did either or both spouses act in a way that may have changed the asset's character?

Front 2

Has the Marital Economic Community Ended?

Back 2

Ends at spouse's death or when a living H and W effect a "permanent phy separation" PPS

PPS - must be both an actual separation and an intent not to resume the marital relationship. one spouse's unilateral intent not to resume is suff't as long as it has been communicated to the other spouse. Legal action not req'd but by doing so is sub evidence that intent not to resume is satisfied.
Actual separation in separate households is req'd

Front 3

Effect of Reconciliation

Back 3

uncertain - One ct of appeal held that in order to terminate the economic community, the separation must turn out in fact to be a final break, but CA SC denied review and ordered opinion unpublished.

Front 4

Beginning of Economic Comm for Registered Domestic Partners

Back 4

DPshave been allowed to register relationships since 1/1/2000 but did not get comm prop until 1/5/2005. But leg allowed retroactive comm prop sys to date which couple initially registered.

Front 5

Source of acquisitioxxxn affecting CP

Back 5

All prop acquired during marriage is CP except:
1. Prop rec'v by gift, bequest, devise, or descent
2. rents, issues, and profits of SP
3. Prop acquired in exchange for SP

proof that prop was acquired during marriage raises a presumption that asset is CP

presumption overcome by showing:
i) prop was a gift or fruit of SP
ii) tracing prop back to SP source

Front 6

out-of-state realty incl as CP?

Back 6

out-of-state realty bought w community funds by married Californians (domiciled in CA) is incl as CP.

Front 7

Treatment of Personal Injury Recovery Against Third-Pty Tortfeasor

(5 important points)

Back 7

Recovery is classified according to when the cause of action arose.

If cause of action arises during marriage --> settlement is CP.

COA arises when the injury is inflicted. Thus, deceased spouse toriously injured during marriage gets recovery is CP

COA arises after Permanent Separation - injured spouse's SP, but may reimburse the community or other spouse's separate estate for any expenses pd on acct of injury

At divorce, "comm estate personal injury damages" shall be awarded entirely to injured spouse unless justice req's otherwise. in that event, injured spouse at least gets 1/2.

Once community estate personal injury damages have been "commingled" w other CP, damages lose special character and are treated as typ CP. Thus, this prviso seems to disallow the usu tracing of prop back to its source to a personal injury award to "uncommingle" the funds.

Personal injury recover against other spouse is always the injured spouse's SP

Front 8

Retirement Pensions - GR and Calculation

Back 8

CA treats retirement pensions, vested or not, as CP to the extent that right to benefits was earned during marriage. Immaterial that benefits rec'v after marriage.

If not vested, divorce court might say divide the unvested pension "when and if benefits are rec'vd"

To determine amt that is community interest PV(Pension in immediate distribution or monthly benefits in a "wait and see" distribution)*( total # of contribution years while married) / total # of pension years)

Front 9

Retirement Pensions Interest Terminable at Death of nonemployee spouse?

Back 9

For Divorce Situations: CA Sect. 2610 "ea party shall rec'v "the parties full CP share in any retirement plan"" regardless of who dies first.

SPLIT: whether this rule applies when a marriage survives until death of one of the spouses.

HWR, US SC held ERISA's anti-assignment provisions prohibit the testamentary transfer by a nondivorced deceased spouse of her state law CP interest in surviving spouse's ERISA-regulated private sector pension.

Front 10

What happens when Spouse is eligible to retire but does not?

Back 10

When a pension is divided "when and if benefits are rec'vd", if the worker does not wish to retire and take distribution, she must pay the nonemployee spouse what she would have rec'vd had she retired.

CA divorce court may order a private employer to pay the nontemployee spouse her share as though worker had in fact reired. HWR, CA divorce court may not order a PUBLIC pension plan to make an ERISA payout. Instead, the case Gillmore governs; a Gillmore payout order must be directed against the pub employee spouse.

Employee spouse must give notice that he is req'd to make payments although he has not yet retired.

Nonemployee former spouse wishing to rec'v Gillmore pymts must file a motion to obtain her CP share and the date of filing is controling for the purposes of entitlement to benefits.

Front 11

Disability Pay and Workers' Compensation CP?

Back 11

To the extent retirement/workers comp is intended to replace marital earnings, it will be treated as CP.

To the extent retirement/workers comp is intended to replace postdivorce earnings, it is SP.

Thus, inquiry is what do the benefits replace? immaterial if right to rec'v is during or after marriage.

If lump sum consisting of both SP and CP, it must be apportioned.

Front 12

what happens when worker is eligible for retirement pension but elects disability/workers comp pay.

Back 12

Usu disability is SP if earned after marriage, but when it takes the place of a pension plan that is to be divided btwn spouses as CP, CA will req' that disability pay be treated as CP to the extetnt it replaces a CP interest in an old-age retirement plan.

This rules does not apply when the bare right to renew a benefit is traceable to Community premiums pd for terms that expired before the divorced spouse became disabled and where the divorced spouse renewed the policy w separate funds after divorce.

Front 13

Is Severance Pay CP?

Back 13

SPLIT: Depends how the court characterizes the severance pay.

Court has held that permanently separated H's severance pay was his SP bc it replaced lost earnings that would have been his SP. Also recognized that the employer was not contractually obligated to pay severance pay.

A court held that NFL severance pay was CP bc the right to lump-sum severance arouse from collective bargaining K and the right was earned by employment during marriage. One court interpreted this K to essentially be a pension plan and analogous w a pension plan distribution of CP.

Critique - should not turn on whether employer was K'lly req'd to give pay.

If purpose of severance pay is to ease worker's transition to a new job by providing temporary replacement, the disability analogy seems more appropriate.

Front 14

Severance and Retirement Benefits Combined in Early Retirement Package - CP?

What does this even mean?

Back 14

Employees may accept termination pkgs that augmented ordinary retirement benefits w early retirement incentives arguably in the nature of severance pay.

The "enhanced retirement benefits" are subj to CP distribution. Hwr, any add'l severance pymts rec'vd by a spouse after separation are SP.

Front 15

Stock Options - CP?

Back 15

If exercisable after marriage but gained the right during marriage, one court treated options a earned from the time the employee began work for the Co and applied the pension "time rule" to determine CP interest in the Options. But court does say to look at each case's facts to determine.

Front 16

Business and Professional Goodwill CP?

Back 16

Goodwill is essentially the difference btwn the total value of a buz or prof practice and the value of its assembled physical assets. Intangible value that develops over the life of a buz - reputation, habitual clientele.

To extent GW is earned during marriage, CA treats it as CP even when some prof GW cannot by law be sold or transferred.

Valuation - 2 techniques
1. market sales valuation
price of gW woulld command in sell of buz or profession
PV(future stream of income that GW developed during marriage will generate
2. capitalization of past excess earnings

Front 17

Education and Training CP?

Back 17

Ed and training acquired during marriage is not treated as divisible prop. But there is an equitable right of reimbursement w interest to the comm when comm prop funds are (i) used to either pay for ed or training or are used to repay a loan incurred for ed or training and (ii) the ed or training substantially enhances the earning capacity of the educated party.

Ed loans at divorce shall be assigned solely to the educated spouse.

Reimbursement is aval when a spouse's ed was acquired before marriage and CP funds were used during marriage to repay that spouse's ed loans.

Equitable defenses to Reimbursement Duty - Reimbursement may be reduced if:
1. community ha substantially benefited. presumption after 10 years
2. ed and training is offset by community-funded education rec'vd by the other spouse.
3. Ed and training enables its recipient to engage in gainful employment that substantially reduces the need the recipient would otherwise have for spousal support.

Front 18

What education expenses are reimbursable to the comm estate?

Back 18

Statue is ambiguous. Reimbursable comm contributions as "payments made w CP for education" which suggests payments only for direct ed expenses s.a. books and tuition.

"Loans incurred for ed or training" suggest living expenses may be contemplated as well, bc most of student loans are incurred primarily for living expenses.

Case of Watt - assigned all loans to educated spouse and all out-of-pocket expenditures on tuition, books, supplies, and transporation reimbursement to the comm.

Front 19

Life Insurance CP?

Back 19

Life insurance proceeds are CP in proportion to the % of premiums pd by the community.

Front 20

Term Insurance

Back 20

most likely is not community property. Will be CP only if insured spouse became uninsurable during the premium periods funded w comm payments.

Front 21

Health Insurance CP?

Back 21

NO

Front 22

Property Insurance Proceeds

Back 22

Might take either character.
Several cases have held even though comm prop was used to pay he premiums on a policy insuring one spouse's SP, insurance proceeds nevertheless remain SP. Hwr, comm estate may have a claim for reimbursement of the comm funds that pd premiums.

Conceputally the same as the replacement analysis for disability benefits. Although working during marriage made eligible the right to disability, the disability is to replace SP wages. Simiarly, even though comm premiums funded the insurance, proceeds replace the value of the SP.

One case characterized it hwr as CP.

Front 23

Status as to Presumptions of Character of Prop when dealing w CP

Back 23

General Presumption of CP - all prop acquired during a marriage is presumed to be CP. A showing of possession during marriage may imply acquisition during marriage.
Presumption in applicable to prop to which legal or equitable title is held by a person at the time of his death, if the marriage during which the prop was acquired was ended by divorce > 4 yrs prior to death.

Front 24

Overcoming CP Presumption When Asset acquired during marriage

Back 24

showing the following facts:
i) statutory facts (gift, divise, rent..)
ii) parties took written title to the asset in a manner that shows the parties agreed to hold it other than as CP
iii) ptys agreed the prop would not be CP
iv) one spouse took title in a form that evidences a gift to the other spouse
v0 the purchase funds are traced to an SP source

Front 25

Agreements that Alter Character of CP - Prenups

Back 25

Agreements made by ptys before marriage - prenup, req's no KSN
- SOF - must be writing signed by both ptys.

Oral premarital K may be enforced when:
i) executory promise was fully executed; or ii) the promisor is estopped to assert SOF

A promise is executory when it has not yet been performed. (e.g. Man makes promise to fiancee to make her beneficiary of his life insurance, they marry, he does, and changes his mind. Widow may enforce the oral executory promise bc it was fully executed by the H)


-K's limiting/waiving spousal support are not per se unenforceable

Unenforceable Prenup Ks: 1) positive incentive to seek a divorce; 2) not voluntary 3) unconscionable 4) burdened pty did not have adequate disclosure of the other pty's wealth

Involuntary - a prenup was not executed voluntarily unless court finds all of the following:
a) pty against whom enforcement is sought was represented by independent counsel or expressly waived the right
b)at least after 7 days it was signed, k was presented to the pty against whom enforcement is sought and the pty was advised to seek independent counsel;
c) if unrep by counsel, pty was fulling informed, in writing prior to the signing of the K and the rights she was giving up by signing the K, and was proficient in the language of the explanation of the k;
d) no duress, fraud, undue influence
e) anything court deems relevant.

Front 26

Agreements that Alter Character of CP - Ks during marriage

Back 26

Transmutation - spousal transformation of character of property.

-Ks before 1/1/85 - allowed oral ks, donative acts inferred one or both pty's behavior

-ks on or after 1/1/85 - writing or accepted by the spouse whose interest is adversely affected

H and W cannot contractually alter their legal obligations to ea other.

Rebuttable presumption of undue influence when one spouse gains an advantage over the other in a property transaction, although courts are reluctant to upset transactions btwn spouses based on undue influence.

Front 27

Ways Married Couple may Jointly Hold Propery

Back 27

i) joint tenancy - H and W ea own an undivided 1/2 interest (ea half is SP) w right of survivorship
2) tenancy in common - possess equal proportional ownership interests in the asset, no survivorship
3) CP
4) CP w right of survivorship

Front 28

Married W's Special Presumption

Back 28

when title to prop was solely in W's name before 1975, presumptively married W's SP

Even oday, a reasonable inference, in the absence of evidence to the contrary, is that when one spouse purchases prop and puts title in the other spouse's name alone, the purchaser intended to gift to the titled spouse.

Front 29

When Spouses take tile in joint and equal form by contribute disproportionately to purchase price - what is the result?

Back 29

1. Marriage ends in death: Taking joint and equal title, the SP contributor is presumed to have made a gift. = spouses own property equally. Can overcome presumption by showing mutual assent/understanding of the k by both ptys

2. Marriage ends in divorce or legal separation: All property held by spouses in joint form is presumptively CP for purposes.
Presumption can be overcome by collateral written K or stmt in he documentary evidence of title that prop is SP and not CP

If jointly titled property is CP, at divorce, the SP contributions to acquisition of prop will be reimbursed to the SP contributor w/o interest or apprecation.

Front 30

Married W's Special Presumption

Back 30

when title to prop was solely in W's name before 1975, presumptively married W's SP

Even oday, a reasonable inference, in the absence of evidence to the contrary, is that when one spouse purchases prop and puts title in the other spouse's name alone, the purchaser intended to gift to the titled spouse.

Front 31

When Spouses take tile in joint and equal form by contribute disproportionately to purchase price - what is the result?

Back 31

1. Marriage ends in death: Taking joint and equal title, the SP contributor is presumed to have made a gift. = spouses own property equally. Can overcome presumption by showing mutual assent/understanding of the k by both ptys

2. Marriage ends in divorce or legal separation: All property held by spouses in joint form is presumptively CP for purposes.
Presumption can be overcome by collateral written K or stmt in he documentary evidence of title that prop is SP and not CP

If jointly titled property is CP, at divorce, the SP contributions to acquisition of prop will be reimbursed to the SP contributor w/o interest or apprecation.

Front 32

Tracing Property Purchased From a Commingled Fund (accounts may contain both SP and CP)

Presumptions

Back 32

Avail comm funds are presumed to have been used to pay for family expenses. Separate funds are deemed to have paid for family expenses only when comm funds are exhausted.

A gift is presumed when Sep funds are used to pay family expenses. Presumption can be overcame by reimbursement K.

Front 33

Tracing Property Purchased From a Commingled Fund (accounts may contain both SP and CP)

2 Permissible Tracing Methods

Back 33

a) exhaustion method - SP proponent may show that at the time he purchased asset whose character is contested, comm funs in acct had already been exhausted by pymt of family expenses. thus, asset must have been purchased by Sep funds

b) Direct tracing - SP proponent may show at time asset was purchased:
i) suff't sep and comm funs avail and
ii) he intended use of those sep funds to purchase SP asset.

if SP proponent fails to trace - entire commingled acct and assets purchased from will be CP

Front 34

SP business + managing spouse's community labor -- how do courts value?

Back 34

2 ways to value:
1. management services are valued at the going market salary. Amt of family expenses that were paid from buz earnings are then subtracted. the remainder = comm portion of the buz.

Pereira Accounting
SP consists of manager's separate capital plus fair rate of return there on (e.g. 10% of pincipal *10 yrs). Remainder is CP

Whether to use Van Camp or Pereira? P used when manager spouse was the primary cause of the growth/productivity of sep buz.

Front 35

community payments to pay off mortgage/ loan of SP

Back 35

The community est a proportional property interest to the extent that the payments reduce PRINCIPAL debt, not interest, insurance, etc..

-- look for evidence of a gift - that if the non owning spouse is making the payments, he may be giving a gift. hwr, one court has rejected this proposition.

Front 36

Improvements to SP funded w Comm Funds

Back 36

A gift is presumed when one spouse uses comm funds to improve the other spouse's SP. hwr, no presumption when spouse uses comm funds to improve his own SP. Comm is entitled to reimbursement of the cost of improvement or amt by which the improvement increased value of realty, whichever is greater.

Front 37

Credit Acquisitions - e.g. home that was financed w 20% SP and a loan by both H and W for 80%

Back 37

Home/item is still 20/80 SP/CP. If the separate estate conts to pay more on the purchase price, the CP share will change.

Front 38

Jurisdiction of Divorce Court

Back 38

DC has power to divide all CP and at the request of either party, jointly titled SP. The SP not jointly titled may be distributed by he court only if both ptys request such distribution.

Front 39

Deviations from In-Kind Division (the dividing equally of CP)

Back 39

a) where economic circumstances warrant. Allows awarding a comm-owned asset entirely to one spouse (as long as court makes tot = distribution of assets) when conditions deem it proper to effect a substantially equal division of the community estate. e.g. loss of family home for minority children.

b) deviation from equal division req't - when one spouse deliberately misappropriates CP

- liabilities exceed assets - an unequal division may be made taking into account the parties' relative ability to pay debts.

-one spouse has incurred education debts - those unpaid debts are treated as reciepient's sep debt

-one spouse had incurred tort liability that was NOT based on an activity for the benefit of the community, at divorce the outstanding liability will be assigned to the tortfeasor spouse

- separate debts

- personal injury damages unless justice req's otherwise.

Front 40

income tax consequences at division

Back 40

transfers btwn H and W at divorce are no longer treated as taxable.

court must apportion direct tax liability incurred, if any, equally to both spouses when sale of assets to a third party.

Front 41

Setting Aside CP distribution provision of a divorce judgement

Back 41

1. A court may relieve a party from a judgment taken against him through his mistake, inadvertence, surprise, excusable negligence...within 6 mhts. One 6-mth period is over, relief is limited to cases which a party has effectively been prevented from presenting his case to a court by means such as extrinsic fraud, extrinsic mistake or duress.

Special Family Law Leg - both varieties of fraud and misake are suff't to relieve a pty from J. Must be brought w/in 1 yr after complaining party did or should've discovered the fraud or perjury or w/in 1 yr of J.

duress or incapacity - 2 yrs
failure to disclose prior to divorce re values of CP - w/in 1 yr complaining party discovered or should've discovered the failure to comply.

No time limits to extrinsic fraud, extrinsic mistake, or duress so family law provisions should not be applied

Front 42

Unauthorized Iner Vivos Gifts of CP

Back 42

One spouse may not make an inter vivos gift of CP w/o written consent of the other spouse. but at the death of the donor spouse, the gift, if it has not been voided by nonconsenting spouse during donors lifetime, is treated as valid testamentary transfer of the donor's one-half interest in CP.Thus surviving spouse can only capture 1/2 of her CP.

Front 43

Distribution of a Comm Funded Life Insurance Policy

Back 43

Comm Funded Life Insurance Policy is CP. When a spouse names someone else as his beneficiary, that person takes the deceased spouse's 1/2 CP. Other half goes to the surviving spouse.

Front 44

Comm and SP passing by Intestacy

Back 44

at death of a spouse, 1/2 of CP passes to the surviving spouse leaving s/he will 100% CP.

Decedent's SP passes in whole or in part to surviving spouse (never less than a third):
i) all to surviving spouse if decedent has left no surviving issue, parent, brother, sis, niece, nephew
ii) half to surviving spouse where D leaves only 1 child or issue of deceased child OR no issue but a parent(s), their issue, or issue of either of them
iii) 1/3 when D leaves more than 1 living child OR 1 living and issue of one or more deceased children OR issue of 2 or more deceased children.

Front 45

Ancestral Property Intestate Succession Statute

Back 45

When surviving spouse dies intestate and leaves neither surviving spouse nor issue, realty derived from her predeceased spouse is sent back to his family line provided he did not die more than 15 years before her.

If personal worth $10K or more when he died not more than 5 yrs before her.

Front 46

Choice of Law at Divorce and Death - when do these issues come up

Back 46

When forum court could reasonably apply the law of more than one jurisdiction and choosing one instead of the other would make a difference in the outcome

Forum court will apply forum state's choice of law principles.

Front 47

Choice of Law - dealing w out-of-state property

Back 47

At divorce, CA trial ct will
a) divide the CP and QCP in a way that it is not nec to alter the nature of the interests held in the out-of-state realty;
b0 if this is not poss, the court may either:
1) req' ptys to execute conveyances nec to divide the OoS Prop; or
2) Award to the pty who would have benefited from conveyance the money value of his interest

At death, the out-of-state realty is normally probated in anicillary administration in the state in which the realty is located, according to the laws of that jurisdiction

CA Probate Code defines CP and QCP and "all PERSONAL prop wherever situated and all real prop situated in this state."

Front 48

Quasi-CP

Back 48

QCP is prop acquired by either spouse that would have been CP had the spouse been domiciled in CA at time of acquisition.

QCP retains its SP nature when pts domiciled in CA. This label becomes significant at divorce or death.

At divorce, treated the same as CP

At death, survivor has 1/2 interest in decedent's QCP. Decedent has no rights in the survivor's QCP

If decedent who died domiciled in CA transferred QCP to 3rd pty, for less than substantial KSN and w/o surviving spouse's consent, the surviving spouse may compel the 3rd pty to restore 1/2 the property value.

For purposes of death only, property acquired in another CP jxn is treated as CA CP and not QCP.

Front 49

May a creditor reach one spouse's QCP to satisfy debt incurred by other spouse?

Back 49

questionable whether this is constitutional.

Front 50

Req'ts of lawful marriage

Back 50

req's legal capacity and performance of formal legal procedures

Front 51

Puative Spouse

Back 51

Putative Spouse is not lawfully married but has a good faith belief based on objective reaaonable grounds. Once she learns her marriage is invalid she no longer accrues putative spouse prop rights

also same for domestic partners

gets same prop rights as CP but private K benefits my be limited to married spouses

Spouse might prevail even after she finds out on the basis of estoppel if the other spouse knew the marriage was invalid but nonethless continued to enjoy the benefits of cohabitation

Front 52

General management and control of CP and SP

Back 52

Ea spouse has exclusive mngmt and control over his SP and QCP.

Generally, ea spouse has = mngt and control of CP. Either spouse may acting alone buy,sell, spend, encumber all CP.

Front 53

Management of CP Real Property

Back 53

Both spouses must join in executing any instrument conveying prop or leasing it more than a year. When CP is in one spouses name and that spouse misrepresents and sells to an BFP, the nonconsenting spouse has 1 year to bring an action to void transfer. must demonstrate that she did not consent to, participate in, the transfer. Must return purchase price.

Nonconsenting spouse may also void any and ALL security interest in CP granted to the creditor by the other spouse except "family law atty's real property liens." this power does not void the underlying debt secured by the encumbrance.

Front 54

Management of CP exceptions

Back 54

- one spouse cannot sell personal belongings w/o written consent from other spouse. At any time during or after the marriage the spouse may void the transfer and NOT return transferee's purchase price.

-spouse managing a buz has primary control

-bank acct in the name of a married person is free from control or lien of any other person other than a creditor

-gifts req' written consent of other spouse

Front 55

Creditors Rights

Back 55

Creditors rights follow management rights.
A creditor may reach any property over which the debtor has legal right of management and control. For purposes of creditors' rights, QCP is treated as though it were CP.

Front 56

When is debt incurred?

Back 56

At the time the obligation arises.

Front 57

Property liable for debts

Back 57

-All CP and debtor's Sp are liable for debt incurred before and during the marriage.

- CP earnings of nondebting spouse are not liable for debtor's premarital obligation if kept in separate account.

-one spouse incurs debt for "necessarites," ie living expenses, during marriage, other spouse personally liable.

Front 58

Creditors' rights at divorce

Back 58

-Ea spouse is personally liable for all debts she incurred whether or not the court assigned the debt for payment by the other spouse.

-If a debt is assigned by a divorce court to one spouse, that spouse is personally liable.

-when property assigned of one spouse to satisfy debt of the other, he has a right to reimbursement.

Front 59

Creditors' rights at death of spouse

Back 59

1. When passing through Probate:
Probate Requires debt of D and surviving spouse be first characterized as SP or CP, then ea debt will be allocated accordingly

2.With a will - when property passes w/o administration under probate, the surviving spouse is "personally liable" for debts chargeable against the CP, QCP, and D's SP that pass to her.

Front 60

Rights of Reimbursement

Back 60

One spouse may seek reimbursement when:
i) when CP is applied to satisfy child/spousal support of prior relationship
ii) spouse's SP was applied to debts incurred by other spouse for necessaries and the debtor had SP or CP avail to pay
iii) order of satisfaction of tort debts is not followed.
Other reimbursement rights; debts paid after separation but prior to trial, unauthorized gifts, CP to improve his own SP, ed and training and loans, one spouse contributed SP for purchase or improvement of CP, one spouse contributed property to the other spouse's separate estate.

Must be exercised w/in 3 years when spouse has actual knowledge of application of property to dept or in divorce or death proceedings

Front 61

Property liable for debts

Back 61

-All CP and debtor's Sp are liable for debt incurred before and during the marriage.

- CP earnings of nondebting spouse are not liable for debtor's premarital obligation if kept in separate account.

-one spouse incurs debt for "necessarites," ie living expenses, during marriage, other spouse personally liable.

Front 62

Creditors' rights at divorce

Back 62

-Ea spouse is personally liable for all debts she incurred whether or not the court assigned the debt for payment by the other spouse.

-If a debt is assigned by a divorce court to one spouse, that spouse is personally liable.

-when property assigned of one spouse to satisfy debt of the other, he has a right to reimbursement.

Front 63

Creditors' rights at death of spouse

Back 63

1. When passing through Probate:
Probate Requires debt of D and surviving spouse be first characterized as SP or CP, then ea debt will be allocated accordingly

2.With a will - when property passes w/o administration under probate, the surviving spouse is "personally liable" for debts chargeable against the CP, QCP, and D's SP that pass to her.

Front 64

Rights of Reimbursement

Back 64

One spouse may seek reimbursement when:
i) when CP is applied to satisfy child/spousal support of prior relationship
ii) spouse's SP was applied to debts incurred by other spouse for necessaries and the debtor had SP or CP avail to pay
iii) order of satisfaction of tort debts is not followed.
Other reimbursement rights; debts paid after separation but prior to trial, unauthorized gifts, CP to improve his own SP, ed and training and loans, one spouse contributed SP for purchase or improvement of CP, one spouse contributed property to the other spouse's separate estate.

Must be exercised w/in 3 years when spouse has actual knowledge of application of property to dept or in divorce or death proceedings