“There are several different ways that spouses can hold title to real property. The most common is- as community property. ‘Property includes real and personal property and interest therein.’ (FC 113.)
Spouses may hold title to real property as joint tenants, tenants in common, community property, community property with a right survivorship or in trust. (FC 750.)
Holding title to property as joint tenants gives each spouse an undivided equal right to possess the property. Each spouse has an equal ownership interest in the property and the names of both spouses are on one deed. Title must have been acquired at the same time, by the same conveyance, and the title must expressly state that the spouses hold the title to property as joint tenants.
When a joint tenant dies, title of the property is automatically conveyed by operation of law to the surviving joint tenant. However, if a joint tenant feloniously and intentionally kills the other joint tenant, the property passes as the decedent’s property and the killer has no rights by survivorship. (FC 251.)
If spouses hold title to real property as tenants in common, they do not have to own equal shares and the property can be owned by multiple people with each person owning an undivided fractional interest. Each tenant in common has a deed that sets forth his or her name and the fractional percentage of interest in the property owned. There is no right to survivorship in property owned as tenants in common.
If spouses hold the title to real property as community property, then the respective interests of each spouse in community property during the marriage are present existing and equal. (FC 760 & 751.) When the title to property is held as community property, each spouse has equal rights of management and control of the property and the right to include one-half of the community property in his or her will. If one of the spouses dies without disposing of his or her share of community property, the property automatically passes to the surviving spouse without the need of a probate procedure.
When spouses hold property as community property with the right of survivorship, each spouse owns an equal undivided one-half interest in the property, but there is no right to will or dispose his or her share of the property. And just as the property held in joint tenancy passes to surviving spouse upon the death of one of the spouses, title held in joint tenancy passes to the surviving spouse upon the death of one of the spouses, title held as community property with the right of survivorship is automatically conveyed by operation of law to the surviving spouse.
Spouses can also hold property in a trust. If a spouse transfers community property into a trust, unless the trust provides otherwise, the transferred property remains community property. The trust must be revocable as to that property transferred. A modification of property in the trust during the marriage requires the consent of both spouses. (FC 761(a).) Either spouse can revoke a trust instrument unless the trust instrument expressly provides otherwise.
Community property that is distributed or withdrawn from a trust by revocation, power of withdrawal or otherwise remains community property unless there is a valid transmutation of the property at the time of distribution or withdrawal. This includes any appreciation of the property. (FC 761(b).)
Spouses can alter their property rights with a premarital agreement or other marital property agreement. (FC 1500.)”
[LW Greenberg, California Family Law]
