Community Property -- Basic Principles**

Front 1

Basic Principles -- Characterization

Back 1

Separate Property -- owned by spouse before marriage, acquired during marriage by gift, will, inheritance, acquired during marriage with expenditure of separate funds

Community Property -- acquired by either spouse during marriage

UNLESS -- altered by parties' agreement, parties' conduct, how title was taken

Front 2

Basic Principles -- Community Property Presumption

Back 2

Applies in CA

BURDEN OF PROOF: on party challenging CP presumption

Front 3

Basic Principles -- Registeed Domestic Partners

Back 3

Fall into Community Property upon filing a Declaration of Domestic Partnership with SOS

1) opposite sex marriage
2) elderly opposite-sex (over age of 62) couples receiving SSB

Front 4

Basic Principles -- Termination of Community

Back 4

1) Physical separation
2) Intent not to resume marital situation (one party's intent enough)

Front 5

Basic Principles -- Treatment of Community Property Not Divided on Divorce

Back 5

Court retains continuing jurisdiction to award CP upon motion for a 50-50 split UNLESS court finds that "interests of justice requires unequal division"

Front 6

Basic Principles -- Treatment of Community Property at Divorce

Back 6

Absent a property settlement agreement, all community property must be divided equally.

Economic Circumstances Exceptions: -family residence, closely held corporation, pension

Statutory Exceptions: -spouse misappropriation, educational debt, tort liability if not for benefit of commnity, personal injury awards (CP during marriage - SP at divorce for injured spouse), negative community/liabilities exceed assets (relative ability of spouses to pay debt is considered)

Disparity in earning power can be considered only as to: -spousal support
-child support

Front 7

Basic Principles -- Remedies for Unconsented Transfer of CP

Back 7

Transfer void

Non-transferring spouse can recover, claim as their share of CP, claim from donee, or claim from other spouse's estate

EXCEPTION: US Savings Bonds -- federal preemption

Front 8

Basic Principles -- Testamentary Gifts

Back 8

Spouse free to give away SP

Spouse free to give away their HALF of CP

Front 9

Basic Principles -- Widow's Election Will

Back 9

(WIDOW'S ELECTION CLAUSE)
If the testator tries to devise all of the community property by will, or has included an explicit widow’s election clause in the will, then the surviving spouse must make an election b/w her community property rights or her rights under the will


(NO CLAUSE)
Widow can assert BOTH CP and testamentary rights as long as doing so does not disrupt testator's intent

Front 10

Basic Principles -- Community Credit Presumption

Back 10

Funds borrowed during marriage and goods purchased during marriage are presumptively community credit

BUT

Borrowed funds (and credit purchases) are classified according to primary intent of lender

Front 11

Basic Principles -- Spousal Fiducirary Duty to Each Other

Back 11

Spouses subject to fiduciary duty that arise from their confidential relationship

If one spouse gains an advantage from a transaction, a presumption of undue influence arises

BURDEN OF PROOF: on acting spouse to show they did not breach fiduciary duty

Front 12

Basic Principles -- Intestacy

Back 12

CP --> 100% goes to surviving spouse

SP -->
decedent has no surviving issue, parent, brother/sister, niece/nephew = 100% to survivor

one of the above = 50% to surviving spouse

more than one issue = 33% to surviving spouse

Front 13

Basic Principles --

Ancestral Property Intestate Succession

Back 13

If surviving spouse dies w/o anyone to past deceased's stuff can go back to their family if:

Real Property -- death was not more than 15 years

Personal Property -- death was not more than 5 years