MCLE SELF-STUDY ARTICLE A SNARL OF CONFLICTING PRESUMPTIONS—IN RE BRACE AND ESTATE OF WALL CONTINUE CALIFORNIA’S STRUGGLE TO SQUARE THE CONFLICTING PRESUMPTIONS SET FORTH IN FAMILY CODE SECTION 760 AND EVIDENCE CODE SECTION 662

Written by Timothy J. Chambers, Esq. and David J. Thompson, Esq.^*

I. INTRODUCTION

Most Californians are aware that property acquired during their marriage is presumed to be community property, and that property they owned before marriage is their separate property. What most California married couples are not aware of is that beneath the surface of this bedrock tenet of California law are conflicting presumptions that, when put to the test, may not match the average married couple’s expectations.

Take, for example, a joint tenancy deed. Married couples are frequently advised by brokers or escrow officers to take title in joint tenancy to avoid probate. However, joint tenancy deeds have consequences that many people do not anticipate. And when "the rubber hits the road" and actual ownership of property is put to the test in different contexts, things get complicated fast. This, in large measure, has to do with the different presumptions courts may apply regarding characterization of property owned by married couples. For instance, what happens when property that was acquired during marriage (that was neither gifted nor inherited) is titled in the name of only one spouse and then that spouse dies? Under the Family Code, this property would be presumed community property. But under the Evidence Code, this property would be presumed to belong to the spouse in whose name it is titled. Further complicating the picture for trust and estate practitioners is how the priority of presumptions operates when property is held in trust.