section 852(a) express declaration requirement (California) · Go Syfert
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section 852(a) express declaration requirement in California

6 California opinions name it 1 courts 2001–2023 3 in the last five years

The cases below were cited by California courts in a sentence that names this issue. Sides come from how each citing opinion treated the case (Syfertize flag on that citation), so a case can appear on both: that is where the law is contested. A red or yellow chip is the case's own overall treatment.

Followed or applied (4)

CaseFollowedCited
Estate of Bibbgreen
calctapp · 2001 · cited in 3 California opinions naming this issue, 2018–2021
2 sentences

2021(See Estate of Bibb (2001) 87 Cal.App.4th 461, 468-469 [“since ‘grant’ is the historically operative word for transferring interests in real property, there is no doubt that Everett’s use of the word ‘grant’ to convey the real property into 11 joint tenancy satisfied the express declaration requirement of section 852, subdivision (a)”].) Even assuming the quitclaim deeds did not validly transmute the properties, that does not impact the enforceability of the 2017 settlement agreement.

2019Quoting from Estate of Bibb (2001) 87 Cal.App.4th 461 (Bibb), the court observed that “ ‘ “grant” is the historically operative word for transferring interests in real property,’ ” and reasoned the parties’ use of the word in the Trust Transfer Deed thus satisfied section 852(a)’s express declaration requirement.

13
McGirr v. Barnesongreen
calctapp · 1999 · cited in 3 California opinions naming this issue, 2001–2019
2 sentences

2019The Barneson court explained, “MacDonald’s interpretation of the ‘express declaration’ language in section 852, subdivision (a), can be viewed as effectively creating a ‘presumption’ that transactions between spouses are not ‘transmutations,’ rebuttable by evidence the transaction was documented with a writing containing the requisite language.” (Barneson, supra, 69 Cal.App.4th at p. 593 .) In concluding the proffered writing failed to rebut the presumption, the court rejected the assertion that the instructions unambiguously directed a “change in ownership,” observing the instructions “only d

2019The Barneson court explained, “MacDonald’s interpretation of the ‘express declaration’ language in section 852, subdivision (a), can be viewed as effectively creating a ‘presumption’ that transactions between spouses are not ‘transmutations,’ rebuttable by evidence the transaction was documented with a writing containing the requisite language.” (Barneson, supra, 69 Cal.App.4th at p. 593 .) In concluding the proffered writing failed to rebut the presumption, the court rejected the assertion that the instructions unambiguously directed a “change in ownership,” observing the instructions “only d

13
In Re Marriage of Bensongreen
cal · 2005 · cited in 1 California opinions naming this issue, 2019–2019
1 sentence

2019(Id. at p. 264; In re Marriage of Benson (2005) 36 Cal.4th 1096, 1100 (Benson).) In this case we must decide whether a “Trust Transfer Deed,” signed by Richard Begian, granting certain real property to his wife, Ida Sarajian, met section 852(a)’s express declaration requirement.2 The trial court determined the document’s use of the words “grant” and “gift” satisfied the requirement, because those terms have “an accepted historical meaning” in real property transactions, and thus gave Richard “clear notice” that he was changing the property’s characterization and ownership.

11
Estate of Petersengreen
calctapp · 1994 · cited in 1 California opinions naming this issue, 2001–2001
2 sentences

2001Code, § 852, subd. (a).) Moreover, the document does not contain a clear and unambiguous expression of Everett’s intent to transfer his interest in the subject property, as required by section 852, subdivision (a). ( MacDonald, supra, 51 Cal.3d at pp. 271-273; see Estate of Petersen (1994) 28 Cal.App.4th 1742, 1754-1755 [ 34 Cal.Rptr.2d 449 ] [designation of joint tenancy on account statement does not satisfy the requirement of an express written declaration pursuant to § 852, subd. (a)].) Thus, the Rolls Royce was not validly transmuted from Everett’s separate property.

2001Code, § 852, subd. (a).) Moreover, the document does not contain a clear and unambiguous expression of Everett’s intent to transfer his interest in the subject property, as required by section 852, subdivision (a). ( MacDonald, supra, 51 Cal.3d at pp. 271-273; see Estate of Petersen (1994) 28 Cal.App.4th 1742, 1754-1755 [ 34 Cal.Rptr.2d 449 ] [designation of joint tenancy on account statement does not satisfy the requirement of an express written declaration pursuant to § 852, subd. (a)].) Thus, the Rolls Royce was not validly transmuted from Everett’s separate property.

11

Distinguished, questioned or overruled (0)

CaseNegativeCited
No negative-treatment citations attached to this issue in California. Read the followed side critically anyway.

Also cited on this issue (3)

CaseCitedYears
Estate of MacDonald green
cal · 1990
2 sentences

2021Estate of MacDonald (1990) 51 Cal.3d 262 (MacDonald).) None of the deeds executed in 2012 and 2013 “included sufficient language” to satisfy section 852’s express declaration requirement.

2001(See In re Marriage of Barneson (1999) 69 Cal.App.4th 583, 593 [ 81 Cal.Rptr.2d 726 ] (Barneson) [“The MacDonald test . . . requires only a clear demonstration of a change in ownership or characterization of the property at issue”].) As with the consent paragraphs in MacDonald, supra, 51 Cal.3d at page 268 , there is no dispute in this case that the grant deed, which was signed by Everett, is a writing that was “made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected.” (§ 852, subd. (a).) Thus, we need only determine whether the deed, indep

22001–2021
In Re Marriage of Lund green
calctapp · 2009
1 sentence

2023(Id. at pp. 44, 52.) The trust also automatically terminated upon dissolution resulting in the “return to each Settlor the separate property they contributed to this Agreement not previously disposed of . . . .” (Id. at p. 48.) Relying on Holtemann, the Lund court held that neither the automatic termination upon marital dissolution clause nor 13 the words “for estate planning” as an apparent motivation for the trust had any effect on the clear and direct words of the transmutation agreement itself. ( Lund, supra, 174 Cal.App.4th at pp. 53-54.) To enforce an implied automatic revocation of tran

12023–2023
Safarian v. Govgassian green
calctapp · 2020
1 sentence

2021“Nothing in [section 852] or the legislative history suggests that spouses cannot affirm or ratify a defective transmutation agreement through a subsequent valid agreement.” (Safarian v. Govgassian (2020) 47 Cal.App.5th 1053 , 1068.) The trial court held that the 2017 settlement agreement is just such a subsequent valid agreement.

12021–2021

Statutes the citing opinions construe

CA § Cal. Family Code § 852 (6) CA § Cal. Probate Code § 6600 (3)

Counted by distinct opinions that both name this issue and are annotated to the section; sections every opinion cites regardless of issue are not filtered here, so read the counts against the total above.

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