2011: Non Probate Transfers Of Community Property Without or With Consent Of Other Spouse

In San Diego, many wives and/or husbands attempt to transfer their community property interests to a person other than their spouse. In probate court, these transfers can be considered not effective by a Probate Court Judge. The law, prior to January 1,1993, is different than the law after this date in regards to non probate transfers of community property which are effective on the donor’s death.

Effective as of January 1, 2003, California Probate Code Section 5000 and following made substantial amendments to the law. This dealt specifically with nonprobate transfers of community property interests which was effective upon the death of the donor.

Existing law, before 2003, stated that a married person may not make a nontestamentary gift without the consent of their spouse of community personal property which would be effective upon the death of that spouse. In addition under existing law, with some exceptions, community real property non testamentary transfers were required to be executed by both spouses. Furthermore, a nonprobate transfer of community property, at least as to the surviving spouse’s community property share, was voidable without the consent of the decedent’s spouse.

The new law effective as of January 1, 2003, expressly authorized certain nonprobate transfers that become effective upon the death of the transferor, without the written consent of the other spouse for a spouse’s share of community property under California Probate Code Section 5003. The specifies that a nonprobate transfer of the community property would not be effective as to the nonconsenting spouse’s share of their community property interest under California Probate Code Section 5002. As such, without written consent of the decedent’s spouse, a nonprobate transfer of community property executed by a married person on their death would not be effective as to the spouse’s interest who did not consent in the property. In this analysis, the transfer would not affect the nonconsenting spouse’s disposition on death of the nonconsenting spouse’s interest in the community property by intestate succession, will or nonprobate transfer. In addition, this would not affect any other remedies the nonconsenting spouse may have in pursuing an action against the decedent’s estate in California Probate Court.

There are many other California Probate Code which can affect the non probate transfers and the above is not a complete recitation of the law in this regard. If you have any questions regarding non probate transfers, please feel free to contact us for a confidential and free consultation.