If property was acquired by either spouse during the marriage, there is a rebuttable presumption that the property is community property. (Family Code 760) To overcome the presumption, the contesting party must provide evidence such as:
- Tracing the asset to a separate property source
- Showing an agreement or clear understanding between the parties regarding ownership status, or
- Presenting evidence that the item was acquired by a gift.
Common-Law Presumptions From Form of Title
Under common law, there is a rebuttable presumption that the ownership interest in the property as stated in the title is true and correct. (Evidence Code 662).
In past cases decided by California courts, this presumption applied to when a wife executed a quitclaim and transferred all her rights in the home to her husband. It has also been applied to a case where the husband agreed that title of the home would be in the sole name of his wife. In these older cases, the law presumed the houses to be separate property.
Acquisition During Marriage Presumption Supersedes Common-Law Form of Title
If the first two presumptions conflict, the controlling presumption will be the presumption in favor of community property when the property was acquired during marriage.
To illustrate this, a life insurance policy in the name of the wife but paid with community funds during the marriage will be presumed to be community property, even if it is stated that the wife is the owner of the insurance policy.
Presumptions for Property Acquired in Joint Form
If a property was acquired in joint form during the marriage, the property is presumed to be community property. Such property may include:
- Tenancy in common
- Joint tenancy or tenancy by the entirety; or
- Community property
However, this presumption applies in cases involving the division of property upon divorce or legal separation.
This presumption may be overcome by:
- A clear statement in the deed or other documentary evidence of title by which the property is acquired that the property is separate property and not community property; or
- Proof that the parties made a written agreement that the property is separate property.
Oral or implied agreements will not be enough to overcome the presumption. However, contributions made by the person may be subject to reimbursement.
Community Property Presumption for Joint Bank Accounts
When the parties maintain a joint bank account during their marriage, it is presumed that their net contribution to the account is community property. It is not necessary for the deposit agreement to describe the parties as married.
An account can be defined as a contract for deposit of funds between a depositor and a financial institution and includes a checking account, savings accounts, certificate of deposit, share account and other like agreement.
This presumption for joint bank accounts can be rebutted by proof of any of the following:
- The sums on deposit that are claimed to be separate property can be traced from a separate property source unless it is proved that the married persons made a written agreement that expressed their clear intent that the sums be their community property; or
- The married persons made a written agreement, separate from the deposit agreement, that expressly provided that the claimed-separate sums on deposit were not to be community property.
Bank Account Described As Community Property
When the account agreement describes the bank account as community property, it is presumed to be community property even if the name is only in the name of one of the parties.
Property Acquired by a Woman Before 1975
The following presumptions shall govern for property acquired by a woman before January 1, 1975:
- If acquired by the married woman alone, the property is presumed to be her separate property.
- If acquired by the married woman and any other person, the married woman is presumed to take the part acquired by her as tenant in common, unless a different intention is expressed in the instrument.
- If property is acquired by a husband and wife in an instrument in which they are described as husband and wife, the presumption is that the property is the community property of the husband and wife, unless a different intention is expressed in the instrument.