Question #1
Question:
I just heard that California recently passed a law that provides for something called
"community property with right of survivorship". Can you tell me a little bit
about it?
Answer:
On July 1, 2001, California Civil Code § 682.1 goes into effect, which establishes a
new form of holding title known as community property with right of survivorship. This new
form of ownership combines the survivorship rights of joint tenancy with the tax
advantages of community property, and can be used in connection with conveyance
instruments created on or after that date.
Typically, married couples will hold title either as joint tenants or as community
property. Joint tenancy is a popular device for avoiding probate, since upon the death of
one joint tenant the decedent's interest vests immediately in the survivor. There is no
need for probate, because there is nothing to pass with the decedent's estate. Recording a
simple document known as the Affidavit Death of Joint Tenant can be used to terminate the
joint tenancy.
In contrast, there is no automatic right of survivorship with community property. The
decedent's interest passes as part of his or her estate, and does not pass automatically
to the spouse. It is only when the decedent dies without a will leaving property that
would otherwise pass to his or her spouse under the laws of intestate succession, or dies
with a will leaving the property to the spouse, that community property can pass without
probate.
The main advantage to holding title as community property, however, is that upon the
death of one spouse the entire property receives a step-up in basis for tax purposes. In
contrast, if the spouses hold title as joint tenancy, only the decedent's one-half of the
property will receive the step up in basis. This can make a significant difference in tax
liability when the surviving spouse goes to sell the property.
The new community property with right of survivorship form of ownership combines the
tax advantages of community property with the survivorship rights of joint tenancy. Civ.
C. §682.1 provides that property held under this form of ownership will pass to the
survivor, without administration, subject to the "same procedures as property held in
joint tenancy". Technically, this would mean that the surviving spouse should be able
to record an Affidavit of Death of Joint Tenant, although I would suspect that this
document may be renamed when it is used to terminate title held as community property with
right of survivorship.
In order to create this new form of ownership, the deed into the husband and wife must
specifically state the vesting as "husband and wife as community property with right
of survivorship". One unusual provision of this new law, however, is that the deed
must also be signed or initialed by the husband and wife. Thus, whereas a deed usually
only requires only the signature of the grantor in order to be valid, any conveyance deed
that transfers title as "community property with right of survivorship" should
have the signatures of both the grantors, and the husband and wife as grantees.
Question #2
Question:
I appreciate your consideration in this matter. My daughter is in a predicament. She has been married for 2 years. She and her husband searched together and bought a home. They moved into the home and about 6 months later married. His grandmother co-signed and my daughter was not put on the title.
They are refinancing and signing papers this coming week. He has told her that he does not want her on the title. He wants her to sign a quitclaim. My daughter has put her own money and much work into the house. Should they divorce, does she lose all claims on the house if she signs the quitclaim?
Answer:
Simply stated, your daughter is being asked to give up her community property rights to the house. What is likely happening is that your son-in-law is refinancing the house in his name alone. In order for the title company to insure the property as being vested in his name as a married man, as his sole and separate property, it would be necessary for your daughter to sign the quitclaim deed to relinquish whatever community property rights she may have. If she does so and they later divorce, it would be extremely difficult for her to assert any interest in the property.
Before signing any quitclaim deed, I would urge your daughter to speak with a family law attorney who could advise her of the consequences in the event of a divorce.
