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What does "COMMUNITY PROPERTY WITH RIGHT OF SURVIVORSHIP" Mean?

Q. I am considering a divorce. I have found the deed to our home, and I see that the grant deed by which we took title is held like this "to Jim ... and Mary ..., husband and wife, as Community Property, with Right of Survivorship." What does this mean for me?


A. There are several very important consequences that flow from this language. The way is which title is held (or "form of title") is also called "vesting." Everything I say here applies to title for any form of property - bank or brokerage accounts, for instance, as well as any kind of real estate and the types of personal property for which we use title documents.

First, a "right of survivorship" means that if one party dies - but only before a final judgment of termination of the marriage of domestic partnership, or where a termination of marital status or partnership status occurs before the rest of the case is resolved in judgment form, the party that survives them inherits 100% of the dying party's share of the community property. It does not matter that there exist a Will or Estate document that purports to create a different transfer upon death. Where a right of survivorship exists there is no need to probate an estate in order to obtain full title - all that is required is that a Affidavit of Death of Joint Tenant be recorded with the County Recorder for the County where the real property is located. A Death Certificate must be attached to it. The transfer is then complete.

For other forms of property, as with jointly held bank accounts, the same results occur. However instead of recording an Affidavit of Death with the County Recorder's Office, a Certified Copy of the Death Certificate is simply provided to the banking institution. As a practical matter vehicle titles are different in the sense (a) they are filed with any DMV office in California and (b) the title language rarely references "community property" or 'rights of survivorship', and instead titles the property to Jim "and" "or" Mary. I will have to discuss the rules relating to inheritances and surviving widows and widowers in a different blog.

Second, if a party dies after a Final Judgment dissolving a marriage or domestic partnership, or after a "status termination" before final judgment, but title to the property has never been changed for whatever reason then there is no automatic right of survivorship - in legal effect, the survivorship rights were terminated (severed) upon the by operation of law as a consequence of the Status Termination.

Likewise, if a party to a divorce proceeding dies before the termination of status then the survivorship right controls (see below). Since people don't expect this, something lawyers call a "Blair warning" based upon a particular appellate decision is set forth in the Family Law Summons Form FL-110 that no one ever seems to actually read (hopefully your lawyer told you about it).

This is one reason by marital bifurcations can have unforeseen consequences and should be taken seriously when another spouse in the course of a divorce seeks to terminate status before the entire case is resolved by Final Judgment.

Third, in California when property is vested in both parties as "CP with right of survivorship" it is the equivalent of a "joint tenancy." All the same rules apply. Thus, what we are speaking to applies whether the "CP with right of survivorship" language was used for more common "to Jim and Mary as Joint Tenants is used."

Fourth, there does not need to be any reference to whether the parties are "husband and wife" for these rules to apply. Non-married people can be joint tenants as to any form of real (land) or personal property and the death of one vests the remaining title in the other - however, since there will be no termination of marital status since there is no marriage (assuming no domestic partnership either), there is only one way to destroy the right of survivorship: By transferring at least one party's interest as a "joint tenant" to themselves as a "tenant in common". The transfer of tenant in common interests after death follow the rules of testacy (a will exists and directs who gets what) and intestacy (no will exists, and specific legal rules declare who gets one depending upon their familial relationship to the decedent.

Fifth, many lawyers and savvy unrepresented parties will destroy the right of survivorship before the termination of marital status through the method outlined directly above. It only requires one party to accomplish this and it does not require the other party's consent. This has risks, however, since if you destroy a joint tenancy interest prematurely and other spouse dies then you will not inherit their interest but you will of course inherit you own 50%. If you are a child of a parent married to a non parent or estranged parent and wish to protect your inheritance rights for an ailing father or mother - and they want you to inherit - you should consult a lawyer to assist in destroying the right of survivorship in a legally enforceable way. Note that a termination of this survivorship right violates the automatic temporary restraining orders that arise at the moment that every California dissolution or legal separation proceeding is filed, and that special rules exist for terminating joint tenancies which - if ignored - may not only render the attempt transfer void but further subject you to contempt or other penalties including attorney fees for trying to sever it improperly. Family Code section 2040(b)(c).

Sixth, and most important for the average divorce and in answer to your question, important legal presumptions arise from the Form of Title that have a huge impact on whether property is considered as community or separate. Way simply put, title held as you describe will almost certainly be declared community property for purposes of divorce and each spouse will be entitled to an equal one-half equity interest. However, that outcome does not require the "community property" language to be present in order to apply - any form of title acquired in joint names (tenancies in common, joint tenancies, tenancies by the entirety) triggers the presumption. The relevant Family Code section here is 2581.

Seventh and last for this Blog article, title presumptions are a kind of "super presumption" under the law in the sense that generally in order to rebut (disprove) them, the evidence that you submit must be "clear and convincing." A garden variety presumption in comparison is the rule that property acquired during marriage in whatever form (including title) is presumed to belong to the community. Family Code section 760.

Although FC section 760 doesn't use the word "presumption" that is what it means, and this presumption is the ordinary "by a preponderance of the evidence" presumption - meaning 51% likely or better. Clearing and convincing can be considered as 75% or better - although that is a simplification. Take a look at FC section 2581(a) and (b).

Unfortunately, that is not the end of the analysis because even where property is titled jointly, a party who can trace separate property contributions to its acquisition or certain improvements to it can recover those (Family Code section 2640) if they can follow the money through written records in a legally sufficient way in the event of a divorce. In the event of a death, these reimbursements are extinguished.

Different but similar rules apply to Living Trusts which are beyond the subject of today's Blog. I can see this is a good topic and "I'll be back."