Effect Of Death Of Married Person On Community And Quasi-community Property - General Provisions - Probate - CA

Section § 100

When a married person or someone in a registered domestic partnership dies, their community property is split, with half going to the surviving spouse and the other half belonging to the deceased's estate. However, spouses can agree in writing to divide their property differently, either by splitting the total value unevenly or dividing each asset individually. This arrangement can be made without a written agreement being a requirement but is permitted if agreed upon in writing.

(a) Upon the death of a person who is married or in a registered domestic partnership, one-half of the community property belongs to the surviving spouse and the other one-half belongs to the decedent.

(b) Notwithstanding subdivision (a), spouses may agree in writing to divide their community property on the basis of a non pro rata division of the aggregate value of the community property or on the basis of a division of each individual item or asset of community property, or partly on each basis. Nothing in this subdivision shall be construed to require this written agreement in order to permit or recognize a non pro rata division of community property.

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Section § 101

When someone who is married or in a registered domestic partnership dies while living in California, their quasi-community property is split in half; one half goes to the surviving spouse or partner, and the other half remains part of the decedent's estate.

However, spouses can choose to split this property in ways other than 50/50 if they agree in writing. This means they might divide the overall value differently or decide on who gets which specific items.

(a) Upon the death of a person who is married or in a registered domestic partnership, and is domiciled in this state, one-half of the decedent’s quasi-community property belongs to the surviving spouse and the other one-half belongs to the decedent.

(b) Notwithstanding subdivision (a), spouses may agree in writing to divide their quasi-community property on the basis of a non pro rata division of the aggregate value of the quasi-community property, or on the basis of a division of each individual item or asset of quasi-community property, or partly on each basis. Nothing in this subdivision shall be construed to require this written agreement in order to permit or recognize a non pro rata division of quasi-community property.

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Section § 102

This law allows a surviving spouse to demand that property given away by their deceased spouse without their consent be returned, but only half of it. For this to happen, the deceased must have lived in California, transferred the property to someone else without valuable exchange or the spouse's written consent, and met certain conditions of property control or benefit at the time of death. Specific types of transfers are mentioned, including those where the deceased kept rights to use or manage the property or held it jointly with another person. However, life insurance or pensions paid to someone other than the spouse are exempt from this rule. If the property is returned, it goes to the surviving spouse as if it was never transferred.

(a) The decedent’s surviving spouse may require the transferee of property in which the surviving spouse had an expectancy under Section 101 at the time of the transfer to restore to the decedent’s estate one-half of the property if the transferee retains the property or, if not, one-half of its proceeds or, if none, one-half of its value at the time of transfer, if all of the following requirements are satisfied:

(1) The decedent died domiciled in this state.

(2) The decedent made a transfer of the property to a person other than the surviving spouse without receiving in exchange a consideration of substantial value and without the written consent or joinder of the surviving spouse.

(3) The transfer is any of the following types:

(A) A transfer under which the decedent retained at the time of death the possession or enjoyment of, or the right to income from, the property.

(B) A transfer to the extent that the decedent retained at the time of death a power, either alone or in conjunction with any other person, to revoke or to consume, invade, or dispose of the principal for the decedent’s own benefit.

(C) A transfer whereby property is held at the time of the decedent’s death by the decedent and another with right of survivorship.

(b) Nothing in this section requires a transferee to restore to the decedent’s estate any life insurance, accident insurance, joint annuity, or pension payable to a person other than the surviving spouse.

(c) All property restored to the decedent’s estate under this section belongs to the surviving spouse pursuant to Section 101 as though the transfer had not been made.

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Section § 103

This law explains what happens when a married couple dies, and it's impossible to prove which spouse died first. In such a case, the community and quasi-community property—basically property acquired during marriage—is divided equally as if each spouse survived the other. Each spouse is treated as if they owned half of the property, and it is handled accordingly.

Except as provided by Section 224, if spouses die leaving community or quasi-community property and it cannot be established by clear and convincing evidence that one spouse survived the other:

(a) One-half of the community property and one-half of the quasi-community property shall be administered or distributed, or otherwise dealt with, as if one spouse had survived and as if that one-half belonged to that spouse.

(b) The other one-half of the community property and the other one-half of the quasi-community property shall be administered or distributed, or otherwise dealt with, as if the other spouse had survived and as if that one-half belonged to that spouse.

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Section § 104

Even if there's a general rule about community property, if community property is held in a certain type of trust that can be changed or revoked, the rules for what happens to it when someone dies are dictated by the terms of the trust itself.

Notwithstanding Section 100, community property held in a revocable trust described in Section 761 of the Family Code is governed by the provisions, if any, in the trust for disposition in the event of death.

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Section § 104.5

If you transfer community or quasi-community property to a revocable trust, it is generally assumed this keeps its original character within the trust. This applies to any such transfers made before, on, or after January 1, 2000.

Transfer of community and quasi-community property to a revocable trust shall be presumed to be an agreement, pursuant to Sections 100 and 101, that those assets retain their character in the aggregate for purposes of any division provided by the trust. This section shall apply to all transfers prior to, on, or after January 1, 2000.

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Section § 105

This law states that if someone passed away before January 1, 1985, the old laws that were in place before that date will continue to apply to their case. The updated rules only apply to deaths occurring on or after January 1, 1985.

This part does not apply where the decedent died before January 1, 1985, and the law applicable prior to January 1, 1985, continues to apply where the decedent died before January 1, 1985.

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