Community Property Laws Allow Spouses to Give Away No More than Half of the Community Estate, During Life or Upon Death in a Will or Trust
While many spouses have tried, the law does not allow a living or deceased spouse to give away more than half of the community property marital estate, including in their will or trust, absent the consent of the other spouse. This intersection of family law and trust and estate litigation presents an interesting cross-section of laws.
The analysis begins with California Family Code section 760, which provides that: “Except as otherwise provided by statute, all property, real or personal, wherever situated acquired by a married person during the marriage while domiciled in this state is community property.”
Under California Family Code section 1100(b): “A spouse may not make a gift of community personal property…without the written consent of the other spouse.”
As to a “gift made by one spouse in violation of this section” where “action is taken after the donor spouse’s death…., it is voidable only to the extent of one-half.” In re Marriage of Stephenson (1984) 162 Cal.App.3d 1057.
As to the probate element of this issue, another court explained that, “upon the death of a married person, one-half of the community property belongs to the surviving spouse.” Estate of Scott (1987) 197 Cal.App.3d 913, 919–920.
“If an action to set aside an unauthorized gift or transfer is brought while the community is intact, it can be set aside entirely, but if the action is brought after the transferor spouse’s death or after dissolution, the set-aside will be limited to the nonconsenting spouse’s one-half community interest. Recovery of a one-half share after the spouse’s death is based on the theory that the spouse’s testamentary powers validate the gift of the half interest.” 32 Cal. Jur. 3d Family Law § 557 (citing Droeger v. Friedman, Sloan & Ross (1991) 54 Cal. 3d 26; Estate of Wilson (1986) 183 Cal. App. 3d 67; Tyre v. Aetna Life Ins. Co. (1960) 54 Cal. 2d 399).
Referring to the “one-half rule,” another secondary source explains that: “The non-joining spouse may void a conveyance of community real property, even if made for consideration, only to the extent of one-half after the death of the conveying spouse.” One-half after death, California Community Property Law (2023-2024 ed.) § 8:33 (Trimble v. Trimble (1933) 219 Cal. 340).
To recover the community assets left by a marital partner under a will or trust, a party might allege conversion. “Conversion is generally described as the wrongful exercise of dominion over the personal property of another. The basic elements of the tort are (1) the plaintiff’s ownership or right to possession of personal property; (2) the defendant’s disposition of the property in a manner that is inconsistent with the plaintiff’s property rights; and (3) resulting damages.” Fremont Indem. Co. v. Fremont Gen. Corp. (2007) 148 Cal. App. 4th 97, 119.
Contact a Family Law Attorney in California
It’s important to understand how the marital estate will be impacted upon death of a spouse. Call the family law attorneys at Talkov Law today to learn about your rights by calling (877) PARTITION (727-8484) or contact us online.
