COMMUNITY PROPERTY

COMMUNITY PROPERTY; REGISTERED DOMESTIC PARTNERS

In California, all property, which a married person acquires during the marriage, is presumed to be community property.  California Family Code Section 760.    This means that husband and wife own the property jointly, and it requires both of their signatures to sell the property. Property which a married person owns, prior to the marriage, or which is acquired during the marriage by gift or inheritance, is presumed to be separate property.  California Family Code Section 770.  Separate property belongs only to one spouse, not to both of them.

The same rules apply to gay and lesbian couples who are registered domestic partners.  California Family Code Section 297.5.  Property which registered domestic partners acquire, during the domestic partnership, is presumed to be community property.

Both spouses have the same right to management, ownership and control of community property.  Upon the death of a spouse, his or her heirs inherit his or her community property.  If the spouse dies without a will, his or her interest in community property will ordinarily go to his or her surviving spouse.

A variant form of community property is community property with right of survivorship.  Civil Code Section 682.1(a).  If you hold title this way, upon the death of one of the spouses or domestic partners, the living spouse or domestic partner will inherit the entire property.  Holding title in this way avoids having the property pass through probate.

You can opt out of these results, by written agreement between the spouses or domestic partners.  If you purchase property, during a marriage or domestic partnership, which you do not want to be community property, you need a written agreement taking the property in some other way.  If, on the other hand, you acquire property, during a marriage or domestic partnership, by gift or inheritance, and you want it to be community property, you need to state your intention in writing.

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