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Community property is defined in california Family Code Section 760 as “all real estate, genuine or personal, wherever it is located and acquired by a married person during the marriage.” Basically, the total property acquired during a marriage – unless it is explicitly the property of a particular spouse – is a common property. In the absence of a conjugal or post-uptiale agreement, the co-ownership is shared 50/50 if the spouses divorce. It is up to the recipient party to demonstrate the absence of inappropriate influence. The presumption of undue influence can be rebutted if the beneficiary spouse can prove that the criminal spouse is “free and voluntary, with … knowing all the facts and with a complete understanding of the impact of the operation. Lintz v. Lintz (2014) 222 Cal.App.4. 1346, 1353. With respect to a conversion agreement, the disadvantaged spouse must fully understand that he or she agrees to change the characterization of the property. While post-professional agreements are generally subject to the same termination and registration rules as pre-contract agreements, the rules for transmutation agreements differ slightly. The conversion of real estate is not effective with third parties who do not notice transmutation, unless the transmutation instrument is registered. Although registration is not a precondition for the validity of the transmutation between spouses, it is a precondition for the effect of transmutation to third parties who are otherwise without notice. This requirement is consistent with the fact that transmutations are governed by the laws governing fraudulent transfers.

[1] The best way to avoid errors in the treatment of marital property is a written transmutation agreement. The written document would provide a court with the “clear and convincing evidence” that is needed to prove what the couple actually intends to do. A lawyer can help design such a document, so it clearly reflects the couple`s goals. Even if legal action is needed, a family lawyer can help you resolve all essential property disputes. California requires that the transmutation agreements be established in writing so that all parties are aware of the consequences of the transfer. In some cases, a spouse may exert an inappropriate influence or exploit the other spouse – either through fraud, fraud, coercion, violence. This undermines the purpose of the written document. Do you think with your spouse that you might want to establish and sign a transmutation agreement? Do you feel that you have been unfairly incited to sign your legal rights to certain property rights? Are you considering divorce and would you like to know more about how some real estate can be classified by the courts? To answer these (and many other) questions, contact our experienced California family lawyers for a free consultation. Thus, while transmutation agreements are generally desirable from the point of view of wealth protection, they can have adverse tax consequences due to the loss of half the base levels up.