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
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
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