Can a Will be used to transfer community property?
California Family Code Section 760 defines community property as follows:
Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property.
California Family Code Section 770 defines separate property as follows:
(a) Separate property of a married person includes all of the following:
(1) All property owned by the person before marriage.
(2) All property acquired by the person after marriage by gift, bequest, devise, or descent.
(3) The rents, issues, and profits of the property described in this section.
(b) A married person may, without the consent of the person’s spouse, convey the person’s separate property.
For purposes of death, California Probate Code Section 66 defines quasi-community property as follows:
“Quasi-community property” means the following property, other than community property as defined in Section 28:
(a) All personal property wherever situated, and all real property situated in this state, heretofore or hereafter acquired by a decedent while domiciled elsewhere that would have been the community property of the decedent and the surviving spouse if the decedent had been domiciled in this state at the time of its acquisition.
(b) All personal property wherever situated, and all real property situated in this state, heretofore or hereafter acquired in exchange for real or personal property, wherever situated, that would have been the community property of the decedent and the surviving spouse if the decedent had been domiciled in this state at the time the property so exchanged was acquired.
A married person or registered domestic partner has the authority to transfer his or her separate property and 1/2 of the community property and quasi-community property.
Such person's Will has no authority to distribute more than that person's interest in the community or quasi-community property. Often, married people or registered domestic partners don't carefully consider the appropriate separate or community property character of their assets and therefore fail to consider how their property will get distributed at the time of their death. Consulting with a trained estate planning lawyer will help to ensure that everyone is on the same page.