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Defined by way of exclusion: All property acquired during marriage or domestic partnership while domiciled in California that is not separate property.
Property that is acquired before marriage or domestic partnership, and during marriage or domestic partnership by gift, bequest, devise, and descent, together with the rents, issues, and profits thereof.
- All personal property wherever situated, and all real property situated in California, acquired by a decedent while domiciled elsewhere that would have been community property if the decedent had been domiciled in this state at the time of its acquisition. (Usually in one spouse's name)
- In the absence of death or divorce or termination of domestic partnership, it is treated as separate property of the acquiring spouse or the acquiring domestic partner. [Note that the probate definition for quasi-community property is different from the definition for divorce. For divorce purposes, quasi-community property is all real property, wherever located. For decedents estates purposes, quasi-community property is limited to real property located in California.]
Spousal/Domestic Partner Protection
- Protection is given to the surviving spouse based on CP system
- Rules to Protect the Survivor
- 1. T can give away only his half of CP and his half of Quasi-CP (but T has no interest in Survivors QCP)
- 2. Widow(er)s election
- 3. Protection regarding illusory transfers of quasi-community property and the widows (or surviving domestic partners) election
- survivor may accept Ts Will or the statutory right, but not both.
- Can take whatever T gave under the will OR elect to take ½ the CP and QCP (take against the will)
Protection regarding illusory transfers of quasi-community property and the widows (or surviving domestic partners) election
- During Lifetime QCP is treated as the acquiring partys SP (freely transferable). Reasoning: surviving spouse has just an expectancy in the QCP, not a property interest
- Exception: transfers of acquiring partys QCP is not allowed when the transfer of the QCP is deemed illusory and the surviving spouse or domestic partner invokes the widows election. In such a case, the survivor may require the transferee to restore ½ of the QCP to the decedents estate.
- Illusory: decedent retained some interest or ownership control over the property.
Heirs who are killers? What level of proof?
- Those who feloniously and intentionally kill the decedent cannot take benefits under the will. The killer will not take and the issue of the killer will not take.
- A conviction (guilty plea works) is conclusive.
- In other cases, probate court can determine guilt w/ preponderance w/out a conviction
Joint tenancy where person kills his fellow JT
- Severance of the JT so the killer does NOT have a right of survivorship
- Killer doesnt lose his half interest in the property. So TiC
Killer who is an insurance Beneficiary?
Killer does NOT take any benefit under the insurance K if kill insured.
Intestate Succession: Order of takers?
- 1. Surviving Spouse
- 2. Surviving Issue (Predeceased spouse?)
- 3. Surviving parents
- 4. Surviving issue of parents (brothers, sisters)
- 5. Surviving grandparents
- 6. Surviving issue of grandparents (aunts, uncles)
- 7. Step children (children of predeceased spouse)
- 8. Next of kin
- 9. Parents of decedents former spouse (in laws)
- 10. if none of the above: Escheat to state of California
Surviving spouse inherits what share of CP/quasi-CP?
- Inherits decedents ½ of the CP and ½ of the quasi-CP
- Survivor already owned ½ of CP and QCP; thus, gets 100% of CP, and 100% of the QCP as well
Separate Property: spouse or DP take as follows:
- Entire estate
- if no issue, parents, Brother or Sister or issue of B/S
- ½ the intestate estate
- decedent leaves ONE child or issue of predeceased child
- decedent leaves no issue but leaves a parent(s) or brother/sister (issue of parents), or nieces/nephews (issue of deceased brother/sister)
- 1/3 the intestate estate to surviving spouse, 2/3 to children
- decedent leaves more than one child
- decedent leaves one child and the issue of one or more deceased children
- decedent leaves issue of two or more deceased children
Who gets how much: Per Capita by representation?
- Start at the first line where one person is living
- Give everyone the same amount at that level and to deceased of that generation who leave issue.
- Issue stand in shoes of predeceased children (so split the share of the deceased)
Who gets how much: Per Stirpes/right of representation/by representation
First distribution at the first generation after decedent, even if everyone is dead (issue split those shares)
Rights of Adopted Children?
- Always treated as natural child of the adopting parents
- Adoption severs childs ties and intestate rights to natural parents
- 1. not severed if the adoption is by the spouse or DP of the natural parent
- 2. or the adoption is after the death of either of the natural parents
when parties hold themselves out as parent and child
Step/Foster Children: can they be adopted?
- The child is treated as having been adopted if:
- 1. The relationship began during childs minority, AND
- 2. It continued through the lifetime of the child, AND
- 3. It is established by C/C evidence that the stepparent or foster parent wouldve adopted but for a legal barrier
- Example of barrier: biological parent does not give consent to adopt
- Marital status of parents is irrelevant
- Key: did a parent-child relationship exist?
Non-marital children born to Domestic Partners?
- In a DP, the parent child relationship is established as to the non birthing partner by means of presumption
- Child born during DP presumed child of non-birthing partner
- Formation or attempted formation of DP after child was born AND non-birthing DP . . .
- 1. is named on birth certificate OR
- 2. voluntarily promises to pay child support or is ordered to do so by the court
- Then a parent-child relationship presumed between the child and non-birthing DP
Rights of half-bloods?
relatives of half bloods inherit same as full bloods
POSTHUMOUS CHILD: definition?
Children that are conceived during lifetime decedent but born after the death are deemed heirs of intestate and beneficiaries of Ts will
- Beneficiary must survive T to take under will, trust or intestacy: dead ppl dont take.
- If beneficiary predeceases T, the gift lapses (fails) UNLESS a contrary intent is expressed in the will.
- Consequence of lapse: gift falls to residue OR Goes to intestacy
- CA: BOTH LAPSE/ANTI LAPSE APPLY TO WILLS AND REVOCABLE TRUSTS; ANTI-LAPSE ALSO APPLIES TO CLASS GIFTS.
- Applies only if the devisee who predeceased the T was KINDRED of T (blood relative) OR kindred of a surviving, deceased or former spouse/DP of the testator, and this predeceased devisee leaves issue. In such cases, the Issue will step into the shoes of that predeceased devisee.
- Note: Devisee cannot be the spouse or DP!
- CA: BOTH LAPSE/ANTI LAPSE APPLY TO WILLS AND REVOCABLE TRUSTS; ANTI-LAPSE ALSO APPLIES TO CLASS GIFTS.
Simultaneous death definition?
If people die together, and it cant be established by clear & convincing evidence who died first, it is deemed that devisee predeceased T.
Gift and simultaneous death?
Gift would either lapse or be distributed under CAs anti-lapse
JT and simultaneous death?
Severs the JT each gets 1/2
CP and simultaneous death?
Severs the CP/QCP each gets 1/2
Insurance and simultaneous death with the beneficiary?
- 1. Look for alternate beneficiary
- 2. If no alternate, then to insured's estate (residuary if exists, otherwise to heirs)
- 3. NOTE: if policy premiums are paid w/ CP or quasi-CP AND the insured and beneficiary were married/DPs then 1/2 proceeds go to Hs estate and half to the other W or DPs estate
Intestate and heir die at the same time?
Heir must survive the intestate by 120 hours in order to take, established under a C/C evidence standard. Does NOT apply if property would escheat
- Rule: A will passes all property the T had at the time of execution plus all acquired property after will was executed
- Increase during Ts lifetime: Stock dividends or splits paid/declared during Ts lifetime go to the beneficiary if the stock is owned by T at Ts death
Increase during probate (after Ts death)
- Specific devises: all increases go to beneficiary (e.g., stock dividends/splits, rents, interest on indebtedness)
- General devisees dont receive the increase (EXCEPTION: general pecuniary gifts ($10k to A) earn interest from 1 year after death to date of distribution)
Order of abatement
- 1. First, abate property NOT passing by the decedents will or revocable inter vivos trust
- 2. Then, from all beneficiaries of Ts will AND trust in proportion to value of the gifts they each received (pro-rata)
- Relatives are not favored over non relatives
- court can exempt the specific gift if abating would defeat the OBVIOUS intention of the testator
- must appear from the language in which the specific devise is created or from general terms of will or trust
Order of abatement to pay off general debts of the decedent
- 1. Intestate property
- 2. Residuary gifts
- 3. General gifts to non-relatives
- 4. General gifts to relatives
- 5. Specific gifts to non-relatives
- 6. Specific gifts to relatives (note that demonstrative gifts treated as specific.)
- NOTE: the order of abatement for omitted children and spouses is NOT the order to pay off general debts of decedents
- debt is extinguished
- Modern and CA Rule: NO AUTOMATIC EXONERATION. Devisee takes specific gifts subject to an encumbrance (e.g. mortgage) unless the testators will states that the specific gift is to be exonerated (executor pays off the debt w/ the estate).
- General direction to pay all my debts insufficient to require exoneration
- If the gift is exonerated, in the absence of contrary intention in the will, other specific gifts do not abate.
Gift made in contemplation of imminent death
- GIFTS CAUSA MORTIS
- These gifts are Valid, but only for personal property not real property. Donor must make a delivery of the property to donee.
- NOTE: if donor survives, revoked by operation of law
Gifts Causa Mortis: Actual/manual delivery?
corpus is itself transferred to donee (cash handed over)
Gifts Causa Mortis: symbolic delivery?
- something representative of the corpus is given to donee
- ie: a writing evidencing ownership (quarterly statement of a bank account)
Gifts Causa mortis: constructive delivery?
- CL: key to a room, safe deposit box, treasure map etc.
- Modern: where donor has done everything possible to effectuate delivery and no issue of fraud/mistake