Marital rights involving gifts of trust assets or gifts of marital assets can get a bit tricky. California is a community property state. By definition, anything you acquire during your marriage – meaning if you and your spouse buy a house— the presumption is that that house is community property. Each spouse has the right to give away his or her half of the community property to somebody who is not a spouse. But he or she cannot give away all of it.
Sometimes, you’ll see situations where a spouse attempts to give all of the house to a family member or a friend and tries to exclude the other spouse. That simply can’t happen.
California Community Property Rights Laws and Trust Assets
Under our marital rights laws and our community property rights laws, the surviving spouse has the right to recover their half of any community property that somebody attempts to give away – or that somebody has actually given away.
Another good example is if a spouse takes cash out of your community property bank account and puts it into a separate bank account that is in joint tenants with somebody else.
The spouse can give away his or her half of the community property, but not your half of the community property. If you are the other spouse, you would have a right to go to that bank account, with a court order, and claw back your half of the community property assets. It’s not necessarily an easy thing to do. You do have to go to court. You do have to get court orders, but you definitely have a legal right to your half of the community property, under California law.
Rights to Separate Property
You also have a right to all of your separate property. That can be a little tricky if you haven’t kept it separate. You do have a right to receive that if, for some reason, somebody is trying to give it away and give it away from you.
So that’s a little primer on the basics of community property rights in California.