When is your spouse's consent not required for gifts of community property?
There are some exceptions to the general rule that your spouse must provide consent when you make gifts of community property.
Situations Where Spousal Consent Isn't Required
- Both spouses are mutually making a gift of community personal property to a third party.
- The third party pays for the community personal property at a fair and reasonable value.
- The gift of community personal property is to the other spouse.
Void vs. Voidable Gift
What about community property gifts that your spouse made in the past without your consent?
In general, a gift that your spouse makes without your consent is considered a "voidable" (not "void") gift. That means you could technically bring a legal action to set aside or have the gift declared void, but that the gift itself is not void without any further action. If you're spouse is still alive, you could void the gift in its entirety, whereas, once your spouse passes away, you may only void the gift up to your one-half community property interest.
Sometimes, people run afoul of this rule without thinking much about it because the item of community property being given away is of nominal value or because it's not worth the effort to enforce one's community property interest in a certain item.
However, the underlying principal generally applies to all gifts of community property, so it's important to keep these rules in mind when one spouse tries to gift assets that are valuable.