section 760 general community property presumption in California

2024Code, § 760),2 a principle that “ ‘is perhaps the most fundamental . . . of California’s community property law.’ ” (In re Brace (2020) 9 Cal.5th 903 , 914.) On the other hand, property owned by a spouse before marriage is that spouse’s separate property, including all of the “rents, issues, and profits” of such property. (§ 770, subds. (a)(1), (a)(3); Brace, at p. 914.) Thus, “a spouse may rebut the Family Code section 760 presumption by tracing the source of funds used to acquire property [during the marriage] to separate property.” (Brace, at p. 914.) “ ‘Separate funds do not lose their cha

2023Code, § 760),2 a principle that “ ‘is perhaps the most fundamental . . . of California’s community property law.’ ” (In re Brace (2020) 9 Cal.5th 903 , 914.) On the other hand, property owned by a spouse before marriage is that spouse’s separate property, including all of the “rents, issues, and profits” of such property. (§ 770, subds. (a)(1), (a)(3); Brace, at p. 914.) Thus, “a spouse may rebut the Family Code section 760 presumption by tracing the source of funds used to acquire property [during the marriage] to separate property.” (Brace, at p. 914.) “ ‘Separate funds do not lose their cha

2019But if the separate property and community property interests have been commingled in such a manner that the respective contributions cannot *92 be traced and identified, the entire commingled funds will be deemed community property pursuant to the general community property presumption of section 760." ( In re Marriage of Braud (1996) 45 Cal.App.4th 797 , 822-823, 53 Cal.Rptr.2d 179 ( Braud ); see also In re Marriage of Cochran (2001) 87 Cal.App.4th 1050 , 1057, 104 Cal.Rptr.2d 920 ( Cochran ); Bonvino , supra , 241 Cal.App.4th at p. 1423 , 194 Cal.Rptr.3d 754 .) A. Joe's Tracing At trial, Jo

2019But if the separate property and community property interests have been commingled in such a manner that the respective contributions cannot *92 be traced and identified, the entire commingled funds will be deemed community property pursuant to the general community property presumption of section 760." ( In re Marriage of Braud (1996) 45 Cal.App.4th 797 , 822-823, 53 Cal.Rptr.2d 179 ( Braud ); see also In re Marriage of Cochran (2001) 87 Cal.App.4th 1050 , 1057, 104 Cal.Rptr.2d 920 ( Cochran ); Bonvino , supra , 241 Cal.App.4th at p. 1423 , 194 Cal.Rptr.3d 754 .) A. Joe's Tracing At trial, Jo

2025(In re Marriage of Mix (1975) 14 Cal.3d 604, 611 (Mix); See, supra, 64 Cal.2d at p. 784 .) Where assets are commingled, the spouse asserting an asset is separate property bears the burden of overcoming the community property presumption. ( Mix, supra, at pp. 610-611.) There are two tracing methods generally utilized to characterize commingled funds: “direct tracing,” and “‘family expenses” tracing, also called recapitulation tracing.

2022(See v. See, supra, 64 Cal.2d at p. 783 .) 1.

2024(Estate of Murphy (1976) 15 Cal.3d 907, 917 (Murphy).) When separate property is commingled in an account with community property, as it was here, tracing is a factual issue for the trial court. “ ‘Whether separate funds so deposited continue to be on deposit when a withdrawal is made from such a bank account . . . , and whether the intention of the drawer is to withdraw such funds therefrom are questions of fact for determination by the trial court.’ ” (Mix, supra, 14 Cal.3d at p. 612 .) B.

2014Unsupported by documentation which should be readily available, Manuel’s assertion that he had a pattern and practice of always collecting the rents from Lee Fashion, the tenant, and paying the mortgage to William Wardell at the bank before making any other payments falls short of the required tracing in light of the [section] 760 presumption. ([In re] Marriage of Hig[i]nbotham (1988) 203 Cal.App.3d 322, 329 ; [accord,] Estate of Murphey [sic] (1976) 15 Cal.3d 907, 918 .)” The court also rejected Manuel’s attempt to override the presumption of section 760 “by use of the exhaustion method of tr

2022General Principles “In a marital dissolution proceeding, a court’s characterization of the parties’ property—as community property or separate property—determines the division of the property between the spouses.” (In re Marriage of Valli (2014) 58 Cal.4th 1396, 1399 .) Family Code section 760 sets forth the presumption that property acquired during a marriage while domiciled in California is community property.

2021The court cited Justice Chin’s concurrence In re Marriage of Valli (2014) 58 Cal.4th 1396, 1413-1414 (Valli), which explained: “the statutes in the Family Code governing community property, including the section 760 presumption, are sufficient unto themselves. . . .

2025(In re Marriage of Braud (1996) 45 Cal.App.4th 797 , 822– 823 (Braud).) However, if the separate property and community property have been commingled such that the respective contributions cannot be traced and identified, the 30. entire commingled fund will be deemed community property pursuant to Family Code section 760’s general community property presumption.

2025Code § 760.) “[T]he mere commingling of separate property and community property funds does not alter the status of the respective property interests, provided that the components of the commingled mass can be adequately traced to their separate property and community property sources. [Citation.] But if the separate property and community property interests have been commingled in such a manner that the respective contributions cannot be traced and identified, the entire commingled fund will be deemed community property pursuant to the general community property presumption of section 760. [C

2022Code, § 606; In re Marriage of Ettefagh (2007) 150 Cal.App.4th 1578, 1585, 1591 .) Any credible evidence may be used to overcome the section 760 presumption, including evidence the item was acquired as a gift to one spouse.

2014(In re Marriage of Ettefagh (2007) 150 Cal.App.4th 1578 [ 59 Cal.Rptr.3d 419 ].) Although the section 760 presumption is rebuttable, not just any evidence can overcome the presumption, but only evidence showing that another statute makes the property something other than community property.

2023Once he commingles, he assumes the burden of keeping records adequate to establish the balance of community income and expenditures at the time an asset is acquired with commingled property”].) Case law has established that “ ‘[I]f the separate 21 property and community property interests have been commingled in such a manner that the respective contributions cannot be traced and identified, the entire commingled fund will be deemed community property pursuant to the general community property presumption of section 760. [Citation.]’ (In re Marriage of Braud[, supra,] 45 Cal.App.4th [at pp.] 8

2014It is based upon the presumption that family expenses are paid from community funds. [Citations.] If at the time of the acquisition of the property in dispute, it can be shown that all community income in the commingled account has been exhausted by family expenses, then all funds remaining in the account at the time the property was purchased were necessarily separate funds. [Citation.]” ( Mix, supra, at p. 612 ; accord, In re Marriage of Prentis- Margulis & Margulis (2011) 198 Cal.App.4th 1252, 1281-1282 .) The trial court did not use either of these methods. 13 established California law.11

2021“Where funds are paid from a commingled account, the presumption is that the funds are community funds. [Citations.] In order to overcome this presumption, a party must trace the funds expended to a separate property source.” (In re Marriage of Frick, supra, 181 Cal.App.3d at p. 1010 ; see Brace, supra, 9 Cal.5th at p. 914 [“a spouse may rebut the Family Code section 760 presumption by tracing the source of funds used to acquire the property to separate property”].) “This issue presents a question of fact for the trial court and its finding will be upheld if supported by substantial evidence.”

2019(See In re Marriage of Frick (1986) 181 Cal.App.3d 997, 1010 [“Where funds are paid from a commingled account, the presumption is that the funds are community funds.”].) Only when the community funds in the cash portion of the account were exhausted did he characterize an investment as separate property.

2014(In re Marriage of Benson (2005) 36 Cal.4th 1096, 1103 [ 32 Cal.Rptr.3d 471 , 116 P.3d 1152 ].) (I will sometimes refer to this presumption as the section 760 presumption.) It appears this presumption can be overcome by a preponderance of the evidence.

2014(In re Marriage of Benson (2005) 36 Cal.4th 1096, 1103 [ 32 Cal.Rptr.3d 471 , 116 P.3d 1152 ].) (I will sometimes refer to this presumption as the section 760 presumption.) It appears this presumption can be overcome by a preponderance of the evidence.

2026Each spouse has a ‘present, existing, and equal’ interest in the community property. (§ 751.) On the other hand, property acquired before marriage, or after separation, or at any time by gift, bequest, devise, or descent, is separate property. (§§ 770, subd. (a), 771.)” (In re Marriage of Ciprari (2019) 32 Cal.App.5th 83, 91 , fn. omitted.) Section 2640 provides that where a party has contributed separate funds to the acquisition of community property, “the party shall be reimbursed for the party’s contributions to the acquisition of property of the community property estate to the extent the

2023(Compare In re Brace (2020) 9 Cal.5th 903 , 935 [elucidating “the default rules that govern characterization of property during marriage,” including that Evidence Code section 662 does not apply when it conflicts with the Family Code section 760 presumption that all property acquired by a married person while domiciled in this state is community property (italics added)]; and In re Marriage of Delaney (2003) 111 Cal.App.4th 991, 998 [“In cases . . . involving interspousal property transactions, the ‘irreconcilable conflict’ between the two presumptions established by [Family Code] section 721

2023(Compare In re Marriage of Carletti (1975) 53 Cal.App.3d 989, 995 [parties stipulated that support payments shall not be modified “ ‘for any reason whatsoever’ ”].) The circumstances here differ from those in Thorne, supra, 203 Cal.App.4th 492 .

2022(See In re Marriage of Stoner (1983) 147 Cal.App.3d 858, 864 [community property “presumption was, of course, rebutted by the quitclaim deed executed by husband and the community obtained no interest”].) Appellant acknowledges that wife “presented Quitclaim Deeds signed by [decedent] for both properties, giving up all of his interest to Respondent as her separate property.” Moreover, the community property presumption of section 760 is trumped by the “well-established default rule that form of title controls at death . . . .” (In re Brace (2020) 9 Cal.5th 903 , 934; see id. at p. 932 [“the for

2020(Lucas, supra, 27 Cal.3d at p. 815 .) A spouse can convert jointly held property acquired with community funds into separate property through a written transmutation agreement.

2020(In re Marriage of Lucas (1980) 27 Cal.3d 808, 815 (Lucas).) Furthermore, for property acquired on or after January 1, 1985, married persons may change — i.e., transmute — the character of property from community to separate, or vice versa, if the transmutation is “made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected.” (Fam.

2016(In re Marriage of Walrath (1998) 17 Cal.4th 907, 920, fn. 5 .) Husband presents a separate contention that the trial court erred in concluding that the parties' 2003 estate plan, which included placement of the residence into family trust ownership, did not result in transmutation of the residence into community property. (§ 852, subd. (a);2 In re Marriage of Starkman (2005) 129 Cal.App.4th 659 (Starkman).) In the alternative, Husband contends he is entitled to reimbursement for payments that the 1 Family Code section 760 provides: "Except as otherwise provided by statute, all property, real