Gifts Under Your Will – Specific Gift Types

Gifts Under Your Will – Specific Gift Types

When talking about types of gifts under your Will, there are a few basic notions to consider.  First, what is being given, money, personal property, real property, and how these are distinguished under the law.  Next, whether the gift is specific, general or demonstrative.  Then there is some wrap up of these concepts.

In California, all property is either real or personal.  Civil Code §657.  The distinction is that Real Property is land and all things attached or incidental or appurtenant to land, not readily moveable.  Civil Code §658.  Personal Property is everything that is not Real Property, or pretty much everything else.  Civil Code §663.  Personal Property is then broken down into other considerations, such as tangible, being actual things you can touch or hold, and intangible, such as rights and privileges.  Tangibles are things like cars, antiques, art, jewelry and even pets.  Before you get goofy on who cares about things you can’t hold, how about patents, copyrights, and stocks, which now a days seems even more significant in wealth.

When dealing with the drafting of your Will, whether real property or personal property, whether tangible or intangible, the key to success in the gifting it in the proper identification of the unique item being given. While most of us may know what “my gold ring” might mean, what if you have more than one?  The goal is specificity to avoid confusion.  Problem is that lawyers are creatures of habit and history.  We tend to use language that beckons to formalities of the past.  It is best to try to draft with clear, simple language, knowable in basic context.  As they say in the military, KISS – Keep It Simple, Stupid.

That was more on the what, so, focusing on Personal Property first, now on to the how and why.  A “Specific Gift” is a gift of specifically identifiable property.  PC §21117(a).  Again, a Specific Gift could be tangible, like the family piano, or intangible, like Apple stock.  It simply must be described with sufficient specificity.  Why do a Specific Gift?  Personal reasons mainly, but sometimes the identification and division has other impact.  A Specific Gift also entitles the recipient to all income derived on that item after the date of death, less any expenses related.  A Specific Gift also gets preference.  As you recall, when discussing Abatement, if other gifts have to be abated, Specific Gifts will be last to be abated for satisfaction issues.  The biggest problem with Specific Gifts is that your holdings change over time, and therefore, these specifics might change too.  A gift of my “100 shares of Apple stock” is great, when that is all you have.  But what happens years later if the Apple stock is long gone, or if you now have 10,000 shares?  The devil is in the details.  Good intentions and great details may lead to lack of clarity and confusion.

A “General Gift” is a gift defined by exclusion, that is, a general gift is a transfer from the general assets of a person, that does not give specific property.  PC §21117(b).  Also capable of being tangible or intangible, it is typically, “all” of the property or a specified amount of a general lump of property.  An example is a “pecuniary gift” or a gift of money.  “I give $10,000 to my sister” is a general gift, in that specific currency is not identified and it is a fixed sum.  Unless otherwise stated, pecuniary gifts will also generally accrue interest.  The problem of a pecuniary gift is that it presumes there is money to dole out.

Another “General Gift” is a demonstrative gift, which is general gift, but from a specified fund or property from which the transfer is primarily to be made.  PC §21117(c).  Thus the gift comes from the estate generally, without being a certain item.  For example, you could give, “two horses from my herd that I keep at Ranch X”. 

A final thought for General Gifting is another pecuniary gift, but this time the right to certain money, but over time.  This is an Annuity under PC §21117(e).  For example, all profit from Ranch X, paid annually, is an annuity.   An annuity may designate a specific fund or property as the source of the periodic payment.

These are some examples of gifts pertaining to personal property.  Next time we will discuss gifts of Real Property.  After that, we will talk about giving the family business.  Following those specific discussions, we will go over residuary gifts.  We will also have a specific discussion about gifts to minors.  We will wrap up wills with some other discussions including charitable gifts.  After that, I hope to have special discussions on taxes.  In the meantime, I hope you will review your Estate Plan with you're “A” Team, or at least begin to seek out an Estate Planning Attorney to start this process.  Stay tuned for future blogs.  However, if you have any questions, feel free to respond below, or if you are interested in learning more about an Estate Plan, Wills, Trusts, Advanced Healthcare Directives, or Divorce, Custody, Visitation, Child Support, Spousal Support, Property Division, Modifications, Remarriage, or Pre-Nuptial Agreements, please contact me at please contact me at fbegun@gmail.com, or through my other websites, www.fcbegun.com, or www.linkedin.com for Fred Begun.

Gifts Under Your Will - Failures

Gifts Under Your Will - Failures

In recent blogs, we have been talking about gifting under your Will.  Last week, conditional gifts, were those with strings attached.  What happens if gifts go wrong?  How can that be?  You mean that your dying wish was not respected?  Perhaps you made a gift, but you did something to the object of the gift prior to death, and never changed your will.  Or something worse, your precious stuff was unwanted?  Yup, this happens.

One category of gift failures is Ademption.  Ademption is the extinction or withdrawal of a gift because you, the gifter, did something that essentially revoked the gift or acted with an intent to revoke.  Most common form of ademption is where the item is gone or extinguished.  Thus, if a gift is made in a Will of a certain thing, say a building, and you, the Testator of your Will, decide to sell the building, or it is condemned, foreclosed, or even lost by destruction, that gift may be adeemed.  If your gift is gone, you may get nothing.  But in the law, words are critical, so “may” is very important.

The law does not like ademption, so there are laws that seek to save the gift, in some part or in kind.  Look to PC §21131 and following to address a variety of circumstances.  So if the building was sold, you may get the money from the sale of the building instead of the building or comparable value received from the loss of the building.  It may be that all you get is whatever is leftover.  However, there can be circumstances where the property is sold to care for the testator, and thus this need in the present overrides a right in the future.  Moral of this story, we need to consider the specific facts and circumstances of any specific gift, depending on whether you are the giver or the givee.  Better moral, review and revise your Estate Plan periodically so that you leave more to your heirs, with clear intent, and not create a squabble over your bones.

Another type of ademption is by advancement.  Just like it sounds, if someone is given something as and advance against their inheritance, they don’t get to double dip and get it twice.  They must account for what they got and get only what they are due.  This advance will be treated as a satisfaction of the inheritance in the Will, if the Will provides for a deduction of the lifetime gift, that there is a writing made with the Will that says the gift is an advance against an inheritance, that the receipt and advancement is acknowledged by the recipient, or that specific property is already given over, and is unique enough to not be given again.  One problem with advancements is that sometimes we are giving percentages or values, and not so much a specific thing.  In that case, we will need to determine the value or percent given and create an appropriate offset.  The possible arguments here are obvious.

Another category of gift failures would be abatement.  If there are more gifts than assets to go around, and all gifts cannot be satisfied in full, then the law kicks in to dictate what we look at, how we gather it together and how we give it out.  PC § 21400 and following gives us the order of abatement and abatement within classes, and as one might expect, we eliminate from the more general first, and try to satisfy the more specific.  For example, anything not included in the Will, an omitted asset, maybe acquired after the Will was made, will get absorbed, along with anything caught in the residuary gifts, and will be used to try to satisfy specific gifts.  Also, gifts to friends or charities will be absorbed in order to allow gifts to the family to take priority.  If you want things done differently, the same moral to the story, review and revise your Estate Plan periodically so that you leave more to your heirs, with clear intent, and not create a squabble over your bones.

In the future, we will be talking about specific gifts of money and personal property.  After that we will talk about real estate.  Then we will talk about giving the family business.  Following those specific discussions, we will go over residuary gifts.  We will also have a specific discussion about gifts to minors.  We will wrap up wills with some other discussions including charitable gifts.  After that, I hope to have special discussions on taxes.  In the meantime, I hope you will review your Estate Plan with you're “A” Team, or at least begin to seek out an Estate Planning Attorney to start this process.  Stay tuned for future blogs.  However, if you have any questions, feel free to respond below, or if you are interested in learning more about an Estate Plan, Wills, Trusts, Advanced Healthcare Directives, or Divorce, Custody, Visitation, Child Support, Spousal Support, Property Division, Modifications, Remarriage, or Pre-Nuptial Agreements, please contact me at please contact me at fbegun@gmail.com, or through my other websites, www.fcbegun.com, or www.linkedin.com for Fred Begun.

Conditional Gifts Under Your Will

Conditional Gifts Under Your Will

Back on track after the Kasner Symposium, I wanted to talk about Conditional Gifts under your Will.  You, as the testator of your Will are free to dispose of your property on whatever conditions you choose, provided those conditions are not prohibited by law or violate public policy.  While there are no express codes that allow for conditional gifts, this is a long established practice of speaking from your Will and whenever there is an expression of intention by the testator in a Will, that expression should control the legal effect.  The court will want the testator’s expressed intent to be given impact, rather than just treat it as meaningless text.

A gift under a Will does not take effect unless the Will clearly expresses the testator’s intention that the gift happens, only upon the satisfaction of a special condition.  Thus, unless something happens, the gift under the Will does not happen.  If the condition does not happen, then the gift lapses and goes under some other section or directive of the Will.  For this reason, you must be sure that this conditional aspect is really desired.

So what are we talking about as being a proper condition?  Most common is survival.  Simply put, the Will might state that, “my children will each take equally, provided they are alive at the time of my passing”.  You are not alive, you don’t get.  Questions about heirs, issue and offspring are different, but you can see a simple condition.  Another condition might be, “that they attain the ages of 30, 35 and 40, and they will get 1/3 at each such age”.  This is a gift that disperses money are various ages.  A final easy example might be, “John will get my horses, provided he still has his farm, Green Acres”.  In such a case, John stands to inherit some horses, so long as he has a place for them.  One could argue that the gift may happen only if he still owns a certain farm known as “Green Acres”, but we will save the discussion of unique hair splitting for another time.

With that said, what is an improper or unenforceable condition? Conditions of a Will are unenforceable if they are deemed to be unlawful or contrary to public policy.  Thus, you can’t leave $1,000,000 to your nephew provided he robs a bank, which is against the law.  As for policy, believe it or not, the state endorses marriage, so if you were to leave, “the house to my daughter, provided she remains unmarried” would be a violation of public policy and not enforceable.  There are numerous cases where the court deals with conditional gifts related to partial use, remarriage, special needs, and the like.  If there is any conditional gift, we need to review the language carefully and consider specific case law in order to best advise you.

A conditional gift may seem like a good idea for the testator to control the use and enjoyment of the property they are gifting away.  However, when a client wants to try to exercise such control, be very careful.  Rather than exercising control, this frequently triggers litigation and if the gift fails it may go away, so that not only does that person receive no gift, but it may go to an alternate person or fall into the residuary of the Will.  Before you go through this process, be sure to discuss all desires and contingencies with your Estate Planner and other advisors.

Before wrapping up this week’s Blog, I thought this is a good place to discuss Mandatory or Precatory language in a Will.  Sometimes you may feel the need or desire to speak through your Will.  Getting in the last word, so to speak, in your Last Will and Testament.  Probably not the best idea, but still common enough.  Whether those words amount to a condition or not, will depend on the drafting and your intent.  If you are making a statement that also carries with it a directive, then the language is mandatory, and thus may be legally enforceable, or if phrased more indirectly, it could be merely precatory, expressing a desire, but creating no actual enforceable directive.  Common mandatory requests include things like, “$10,000 to my nephew, provided he cares for my beloved dog”, whereas, a gift that says, $10,000 to my niece, with the hope that she uses this to pay for drug rehab” is merely a “hope” and therefore precatory, and not a conditional gift.  Granted, the testator may feel good enough about this last request from the grave carrying more weight than saying the same thing while being alive.  Legal importance versus personal satisfaction is another point of discussion between the attorney and the client.

Next time we will talk about ademption, or the cancelation, withdrawal, revocation or failure of a gift.  In the meantime, I hope you will review your Estate Plan with you're “A” Team, or at least begin to seek out an Estate Planning Attorney to start this process.  Stay tuned for future blogs.  However, if you have any questions, feel free to respond below, or if you are interested in learning more about an Estate Plan, Wills, Trusts, Advanced Healthcare Directives, or Divorce, Custody, Visitation, Child Support, Spousal Support, Property Division, Modifications, Remarriage, or Pre-Nuptial Agreements, please contact me at please contact me at fbegun@gmail.com, or through my other websites, www.fcbegun.com, or www.linkedin.com for Fred Begun.

Comments from the Kasner Symposium

Comments from the Kasner Symposium

This week will be a brief break from the regular blog.  All lawyers are required to have a number of hours of continuing education annually.  I recently attended the Jerry Kasner Estate Planning Symposium at Santa Clara University, my alma mater.  Several hundred attorneys, accountants, investment advisors, insurance advisors and others, spent the better part of two days, going over general notions of Estate Planning as well as updating recent events and suggesting implications and ways to work new developments.  I am going to share a few items for your education and consideration.

The first big item is a clear understanding of Estate Tax and Gift Tax exemptions.  After there being no Federal Estate Tax in 2010, the Estate Tax Exemption (ET) and the Gift Tax Exemption (GT) were again reunified in 2011.  The maximum exemption beginning in 2011 was $5,000,000 for ET and $5,000,000 for GT. These are now indexed for inflation and as of 2013 the ET is $5,250,000 and the GT is $5,250,000 and will rise a little every year, unless or until Congress seeks to change this.  This means, for planning purposes you could transfer up to $10,500,000 before taxes come into play.  Now, I know most people are saying, whoopee, this means nothing to me, I only wish I had more than $10,000,000 to give to my family.  I get it.  Me too.  However, in California it is not uncommon to have a simple house worth near $1,000,000.  It is possible to have start up stock that over night could be worth a lot.  It is possible to have a job, earning $150,000 or $200,000 per year.  Maybe your spouse has the same earnings.  And if you do, depending on other needs or choices, the accumulation of real wealth over a number of years is very possible.  Therefore, why not plan to maximize your savings, reduce the possible government take, make things just a little better.  Obviously, not everybody needs the full Estate Plan, with all the bells and whistles, kicking open every loop hole.  But, if you don’t plan for the best, then the worst could just happen.

The next item of interest was considering this exemption information relative to the type of trusts the Estate Planner puts into place for the client.  We have not yet discussed Trusts in the blog, but they are coming up soon.  But for those who have some knowledge or understanding of trusts, there have been various formats in Estate Planning, such as the standard A-B Trusts for a married couple, with a Bypass Trust, or a Survivor Trust, or a Marital Deduction Trust (also called a QTIP).  Depending on what you have, and how you have used your exemptions, or plan to use your exemptions, we may be able to simplify your trust structure, or add different trusts and allow shifting assets.

Another major topic was that of Portability.  I will likely dedicate an entire blog or more to this concept after we discuss trusts.  Portability is the ability for the surviving spouse to absorb and use any unused ET.  The key to accessing as much of the deceased spouses $5,250,000 ET is the proper allocation and application assets.  This can be used to balance values, appreciation, basis adjustment and taxes in the future.

Insurance was another facet frequently discussed.  Life Insurance to the benefit of individuals can be used to provide liquidity upon your passing, as a replacement for your income stream, paying off debts, paying off the house, paying taxes and in the business arena, even funding buy-sell agreements of family businesses or professional partnerships.  Also, Life Insurance policies can be a tool for creating tax free wealth transfers.  However, this too must be done carefully, so that amounts are properly considered, so that beneficiaries are properly identified, and that for tax purposes, ownership rights are clearly delineated.  This leads to the discussion of the ILIT – the Irrevocable Life Insurance Trust and its many permutations.

A final point to raise from the symposium was in the segment discussing current events and legal changes in the court.  The biggest impact item here were the two equal rights cases, U.S. v. Windsor, striking down part of DOMA, the Defense of Marriage Act and Hollingsworth v. Perry, the ruling against California’s Proposition 8 which banned gay marriage.  Both cases were discussed in my blog this summer.  Each case approached equal rights in a different fashion.  What has happened since then is that the IRS has issued a letter opinion, essentially a legal interpretation that the IRS will enforce, stating that any gay or lesbian couple, married in any of the 15 jurisdictions allowing for same sex marriage, will be treated as a married couple, and even if they move to state other then where they were legally married, they may file taxes as married persons, and that the state tax authorities must honor that designation for tax purposes.  Ironically, in many instances there can be some tax treatments that are not favorable to married persons, so now same sex couples can also suffer the so called “marriage penalty”.  Gotta love equality.  

Next time we will get back on track to talk about conditional devises, or gifts with strings attached.  In the weeks to come, I am planning on getting some articles contributed on tax issues and then we will start to discuss trusts.  Please stay tuned.

In the meantime, I hope you will review your Estate Plan with you're “A” Team, or at least begin to seek out an Estate Planning Attorney to start this process.  Stay tuned for future blogs.  However, if you have any questions, feel free to respond below, or if you are interested in learning more about an Estate Plan, Wills, Trusts, Advanced Healthcare Directives, or Divorce, Custody, Visitation, Child Support, Spousal Support, Property Division, Modifications, Remarriage, or Pre-Nuptial Agreements, please contact me at please contact me at fbegun@gmail.com, or through my other websites, www.fcbegun.com, or www.linkedin.com for Fred Begun.

Gifts Under Your Will

Gifts Under Your Will

We talked about general formalities of Wills, structures of Wills, and different components of Wills.  We talked about capacities and other special problems.  Let’s get into some of the technicalities of actually giving under your Will.  Please be very clear, we are talking about under a Will, not to be confused with giving under a Trust, or intestate rights without a Will.

In older Estate Plans, or perhaps in books or movies, you might hear phrases such as “gift” or “devise”, which I have used in my blog, but also “bequest” or “legacy”.  In the past a devise was a gift of land, and a legacy was a gift of money.  From this point on I may use them interchangeably, but will try to use gift or devise, as those are the most common terms today.

Probate Code §21117 recognizes 6 classes of gifts or devises.  There are reasons to be aware of these specific classifications, such as which carry interest with the gifts, or which are subject to abatement in order to satisfy expenses of the estate, or maybe accrue interst, or even gain income from the gift, but we will not review all of these at this time.  Let’s start with some definitions under the Probate Code.

Specific Gifts – is the transfer of specifically identifiable property – examples could include, my car, my collection, or maybe my house located at 10 Elm Street.  PC §21117(a).  A specific gift carries with it any permissible income earned after death, less any attributable expenses, from the time of death until the close of administration of the estate.  As taxes may be a huge expense and exposure, make sure to consult with a tax advisor, whether making the Estate Plan or when receiving such gifts.

General Gifts – is a transfer from the general assets of the transferor that does not give a specific property.  PC §21117(b).  An example of a general gift might be a certain amount of money, but it could also be general items like, “my stock in X corp.”, or “my farm animals”, or even “all my property”

General Pecuniary Gifts – is a pecuniary gift within the meaning of PC §21118.  PC §21117 (d).  This is a general gift of money.  $10,000 to my friend Fred.  This can also bear interest.

Demonstrative Gifts – is a general gift that specifies the fund or property from which the transfer is to be primarily made.  Commonly, this could be a gift of $1000 form my Bank of America account, or $1000 from the sale of Ford Stock.  PC §21117(c).  This differs from other gifts, because if the source of funds no longer exists, unlike a specific gift, it could be satisfied from other sources.

Annuities – is a general pecuniary gift that is payable periodically.  PC §21117 (e).  An annuity must be a certain or knowable amount to be paid over time.  A gift of $1000 per month, for life, is a classic annuity payment.  This differs from a gift of income, proceeds or a percentage.  The prime distinction is that an annuity is a fixed and knowable amount paid periodically, whereas the gift of income is contingent upon making income.  An annuity may draw from an express source, or if that source proves inadequate, there may be rights to draw upon other assets in order to satisfy the annuity.

Residuary Gifts – is a transfer of property that remains after all the specific and general gifts have been satisfied.  PC §21117 (f).  This is the catch all.  Whatever is left over after all the other gifts have been satisfied, can go by the residuary gift.

Next time we will talk about conditional devises, or gifts with strings attached.  In the meantime, I hope you will review your Estate Plan with you're “A” Team, or at least begin to seek out an Estate Planning Attorney to start this process.  Stay tuned for future blogs.  However, if you have any questions, feel free to respond below, or if you are interested in learning more about an Estate Plan, Wills, Trusts, Advanced Healthcare Directives, or Divorce, Custody, Visitation, Child Support, Spousal Support, Property Division, Modifications, Remarriage, or Pre-Nuptial Agreements, please contact me at please contact me at fbegun@gmail.com, or through my other websites, www.fcbegun.com, or www.linkedin.com for Fred Begun.

You Gave Up What?!? – The Disclaimer

You Gave Up What?!? – The Disclaimer

When someone passes, let’s be honest, we mourn the loss, and then get in line with our hands out, to get what’s coming to us.  While an Estate Plan can be created with certain right and benefits in mind, facts change, needs change and taxes change, such that it might be prudent to give up the gifts from a Will.  This is done through a “Disclaimer”.  In this day and age of a weird economy, this may sound silly, but there can be really good reasons.  I plan on having a series of blogs just on tax and Estate Planning very soon from a contributing CPA. We are going to talk some tax issues here, so just roll with me.  That said, let’s start with some mechanics of the process.

A Disclaimer is any document the declines, refuses, denounces or disclaims any interest that would otherwise be taken by a beneficiary.  PC §265.  These rights, procedures and formalities are all outlined in the Probate Code, but we will not walk through the technicalities here.  Suffice it to be said that there are strict formalities that must be followed as to writing and timing of the Disclaimer.  It should be noted that the Disclaimer must be done before the beneficiary receives any benefit from the gift to be disclaimed and may not direct the advancement or other recipient of the gift.  Once done, a Disclaimer is finally binding on party passing up the gift.

Unless the creator of the gift provides for a specific disposition in the event of a Disclaimer, the interest Disclaimed shall descend or be distributed as if the Disclaimant predeceased.  PC §282.  As you may no doubt be thinking, how does this affect who gets what under the inheritance and representation discussion a few weeks ago in the “Come ‘n’ Get It” blog.  Again, with a variety of complexities, the Probate Code address these permutations in various code sections, so please consult with an attorney before acting on any Disclaimer.

Back to the main question, why would anyone pass up a gift under a Will?  Actually, there can be several good reasons, but the primary reason may be taxes.  Every year, the Federal Estate Tax level changes, and the pertinent Exclusion can be significant.  Congress couldn’t even get its act together in 2010, when the Estate Tax was 0.  Other years, the Exclusion has been $10,000,000, meaning that there are no taxes on the first $10,000,000!  I believe the current Exclusion is $5,000,000 but again consult with your CPA, and be aware of the variability of rates when you create your Estate Plan.

How would this work?  An example, taken from the LexisNexis treatise, California Wills and Trusts, would be as follows:

Husband has an Estate of $3,000,000.  Wife has nothing.  Husband’s will leaves all of his Estate to Wife, but provides that any interest Wife may disclaim will be distributed to the trustee of a “Disclaimer Trust”.  Wife will have the lifetime income interest in the trust.  Husband and Wife’s children are the remainder beneficiaries.  Husband dies in 2004 when the applicable Exclusion was $1,500,000.  Wife was the surviving spouse.  What should Wife do?

Normally, all of the $3,000,000 Estate could pass to Wife free of Estate Tax since all of the Estate could qualify for the Marital Deduction.  However, on Wife’s death, all of her Estate would be subject to Estate Taxation.  Assuming Wife dies in 2005, and the Estate of $3,000,000 is still intact, in 2005 the applicable Exclusion amount was $1,500,000.   The Estate Tax was about 46%.  Therefore, $1,500,000 of the $3,000,000 Estate is excluded, leaving $1,500,000 subject to tax at 46%, creating a tax bill of about $695,000!

However, by using the Disclaimer, Wife could make her Widow’s election to take her $1,500,000 and leave $1,500,000 in the Estate.  Then Wife could Disclaim the remaining $1,500,000 at Husband’s death, which would pass into the Disclaimer Trust, which would pass free of taxes upon Wife’s death.  Wife has the benefit of income from the Trust during her life and the family is saved from paying about $695,000 in Estate Taxes.

This one example of how a Disclaimer may save money in the overall Estate Plan.  I touched on several different tax and planning concerns, Estate Taxes (Federal & State), Tax Exclusions, Marital Deductions as well as Elections and Disclaimers.  These are all separate technical concepts.  We have talked about Elections and Disclaimers.  We have not talked about Estate Taxes (Federal & State), Tax Exclusions, Marital Deductions. These will be discussed in special blogs in the near future.  Please be aware that each of these concerns and concepts will have different impact on each and every estate.  Also, for smaller estates, they may be of no concern, which is why not everyone needs a complex Estate Plan.  However, there are countless reasons to consult with an Estate Planning attorney to determine which of the many Estate Planning tools can be used by you, your family and friends in order to retain as much wealth as possible while sustaining your own financial health.

I hope you will review your Estate Plan with you're “A” Team, or at least begin to seek out an Estate Planning Attorney to start this process.  Stay tuned for future blogs.  However, if you have any questions, feel free to respond below, or if you are interested in learning more about an Estate Plan, Wills, Trusts, Advanced Healthcare Directives, or Divorce, Custody, Visitation, Child Support, Spousal Support, Property Division, Modifications, Remarriage, or Pre-Nuptial Agreements, please contact me at please contact me at fbegun@gmail.com, or through my other websites, www.fcbegun.com, or www.linkedin.com for Fred Begun.

Married Persons Property Problems

Married Persons Property Problems

While this blog is directed at Estate Planning for the Recently Divorced, we are creatures of habit.  If you were married, you will probably marry again.  Even so, you might be reading this blog while going through a divorce, or even if you are happily married, because I am trying to give everyone some good information.  Under any of these situations, in California, we need to understand several property concepts, including: Separate Property, Community Property, Quasi-Community Property and how these may affect you ability to plan and give.

Let’s start with some definitions.  Assuming you are single, and have never been married, then Separate Property is whatever you have.  However, if you are or have been married, then you need to know that Separate Property of a married person includes all property owned by that person before marriage, all property acquired by that person during marriage by gift, bequest, devise or descent, and the rents, issues, and profits from any of the aforementioned property.  Family Code §770.   Community Property is all property, real or personal, wherever situated, acquired by a married person, during marriage, while domiciled in California.  Family Code §760 and Probate Code §28.  You may have noticed that Community Property had an added layer of time, status and location, that is, being married while in California.  This distinction is important when understanding the third property type, Quasi-Community Property, which is all property, real or personal, wherever situated, acquired by either spouse, during marriage, while domiciled other than in California, which would have been considered community property if they had been domiciled in California OR in exchange for real or personal property, wherever situated, which would have been community property under the code.  Family Code §125 and Probate Code §66.  These classifications sound more difficult than they are, but are very much driven by actual facts of date, time, location and source of funds.  This must be determined in order to decide if you have any power or control to include these in your Estate Plan.

Obviously, as a single person, never married, this is a non-issue.  As a married person, you and your spouse should know and discuss these questions in developing either a single Estate Plan or compatible separate Estate Plans.  As someone who was married and is now recently divorced or coming out of a divorce, you must be clear and careful that all property disposed of, allocated, or divided through the divorce has gone through this filter, and is properly re-titled so that you can make a clear Estate Plan.

So, what difference does property type make?  A married person can have Separate Property.  A married person may convey the Separate Property any way they want, and without consent from their spouse.  FC §770(b).  Equally, they have complete discretion and full testamentary power over their Separate Property.  PC §6101.  Additionally, a married person may “transmute” or convert their Separate Property into Community Property.  FC §850.  This can be a part of your Estate Planning process or equally a mistake if not fully understood.

As for Community Property, as well as Quasi-Community Property, both spouses have a present, existing and equal ownership interest during their marriage.  FC §751.  While both spouses are living, they each have an equal and undivided one-half interest in that property.  However, while this is a joint interest in the property, upon the death of either spouse, one-half of that community property automatically belongs to the surviving spouse and the other half belongs to the deceased spouse and may be disposed of under the deceased spouse’s will.  PC §100 and PC §6101.  This is a critically important point, as the issue of taxes and basis value create the reasoning behind the Estate Plan to be discussed in future blogs.

So, while you have testamentary capacity over all of your non-transmuted Separate Property, as well as half of the Community and Quasi-Community Property, what happens if you try to Will-away more than your half?  You trigger the Widow’s Election.  If the first spouse to die tries to dispose of more than their Separate Property and their share of the Community and Quasi-Community Property, and in doing so adversely affects the surviving spouse’s property rights, then the surviving spouse is put into a situation where to they cannot simultaneously take under the will and take their share.  It may sound unusual, but the surviving spouse is in an all or nothing situation.  Take your automatic property rights or take through the will.  There is no partial or picking and choosing.  This is based upon old doctrines of law, which we won’t get into here.

What is the survivor to do?  The surviving spouse, widow or widower, can consent to the excessive gifting, to the survivor or away from the survivor.  The survivor may elect to take their right in property.  This is the election, to agree or not to agree.  The reasons and ramifications are too complex for this blog right now.  Suffice it to say that there are control reasons, such as family business or property to move to the next generation, there may be control reasons to provide for management and income for a surviving spouse, and also issues of probate, tax and overall financial impacts.  Rather than forcing this dilemma through a Will as the sole Estate Plan, similar and less stressful results may be accomplished through a more routine Trust mechanism.

I hope you will review your Estate Plan with you're “A” Team, or at least begin to seek out an Estate Planning Attorney to start this process.  Stay tuned for future blogs.  However, if you have any questions, feel free to respond below, or if you are interested in learning more about an Estate Plan, Wills, Trusts, Advanced Healthcare Directives, or Divorce, Custody, Visitation, Child Support, Spousal Support, Property Division, Modifications, Remarriage, or Pre-Nuptial Agreements, please contact me at please contact me at fbegun@gmail.com, or through my other websites, www.fcbegun.com, or www.linkedin.com for Fred Begun.