Opinion
S252473
07-23-2020
IN RE CLIFFORD ALLEN BRACE, JR.
Opinion filed
We answer the Ninth Circuit's question as follows: Evidence Code section 662 does not apply to property acquired during marriage when it conflicts with Family Code section 760. For joint tenancy property acquired during marriage before 1975, each spouse's interest is presumptively separate in character. (Fam. Code, § 803; Siberell, supra, 214 Cal. at p. 773.) For joint tenancy property acquired with community funds on or after January 1, 1975, the property is presumptively community in character. (Fam. Code, § 760.)
If such property was acquired before 1985, the parties can show a transmutation from community property to separate property by oral or written agreement or a common understanding. (Fam. Code, § 852, subd. (e); Estate of Blair, supra, 199 Cal.App.3d at p. 167.) Although a joint tenancy deed is insufficient to effect a transmutation, a court may consider the form of title in determining whether the parties had a common agreement or understanding under the pre-1985 rules. (See MacDonald, supra, 51 Cal. 3d at p. 270 & fn. 6.) For joint tenancy property acquired with community funds on or after January 1, 1985, a valid transmutation from community property to separate property requires a written declaration that expressly states that the character or ownership of the property is being changed. (Fam. Code, § 852, subd. (a); MacDonald, at p. 272). A joint tenancy deed, by itself, does not suffice.
Nothing in our decision precludes spouses from holding separate property as joint tenants or from transmuting community property into separate property held in joint tenancy as long as the applicable transmutation requirements are met. Nor does our decision alter the operation of the right of survivorship that is the main incident of joint tenancy title.
Majority Opinion by Liu, J.
-- joined by Cantil-Sakauye, C. J., Chin, Corrigan, Cuéllar, and Groban, JJ.
Concurring and Dissenting Opinion by Kruger, J.