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Effect of Death of Married Person on Community Property

In today’s mobile world, people might live and work in many countries during their careers. Initially, the citizen will reside in one state and acquire property there as a single person, then move to another state, marry and acquire property there, and then transfer with his or her family to one or more other states and acquire property in each of those states.

California Probate Code Section 100

According to California Probate Code Section 100: “Upon the death of a person who is married or in a registered domestic partnership, one-half of the community property belongs to the surviving spouse and the other one-half belongs to the decedent”.[1]

Division 2 of the abovementioned Section tells that spouses either agree in writing to divide their Community property on the basis of a non-pro-rated division of the aggregate value of the Community property, or on the basis of a division of each individual item or asset of the Community property, or in part on either basis. Nothing in the subdivision may be construed to include this written agreement in order to authorize or recognize a non-pro rata division of Community property.

California Probate Code Section 103

If spouses die leaving community or quasi-community property and cannot be proven by clear and compelling proof that one spouse survived the other: [2]

  • One-half of the common property and one-half of the quasi-community property shall be managed or allocated, or otherwise disposed of, as if one spouse had survived and as if that one-half of the property belonged to that spouse.
  • The other one-half of the common property and the other one-half of the quasi-community property shall be managed or divided or otherwise disposed of as if the other spouse had survived and as if that one-half of the property belonged to that spouse.

The transfer of community and quasi-community assets to a revocable trust is assumed to be an arrangement, pursuant to Sections 100 and 101, that those assets maintain their overall character for the purposes of any division established by the trust. This section shall refer to all transactions made before, on or after 1 January 2000.

[1] California Probate Code Section 100

[2] California Probate Code Section 103

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