Atwood, Haiman & Westerberg

Legal Topics October, 2000

It Takes Two, Baby:
Spousal Consent Requirements for Transfer of California Community Property
By Eric S. Haiman
Feel like dumping your husband's (or wife's) old recliner out the window? Well, you'd better not, at least not without his/her written consent.
California is a "community property" state. This means that any property acquired with income earned during a marriage or any real estate owned by a married couple as to which title is held as community property is considered "community property." California Family Code section 1100 governs a spouse's right to dispose of community property. Whether one spouse is required to get the other's permission to transfer marital community property depends almost entirely on the nature of the property. Family Code section 1100(c), for example, provides that one spouse may not sell, convey, or encumber community personal property used as the family dwelling, or the furnishings of the home (like a recliner), or the clothing or wearing apparel of the other spouse or minor children in the home without consent from the other spouse. Other items, like the family car, or sport accessories, may be disposed of unilaterally as long as the spouse gets fair and reasonable value for the items.
Community real property (i.e., land, homes, buildings, etc.) cannot be legally transferred without both spouses executing the instrument by which that community real property or any interest therein is sold, conveyed, encumbered or leased, if for longer than one year. This requirement exists even where one of the spouses is mentally incapacitated. A person who lacks the legal capacity to enter into a contract is unable to dispose of any interest in real property of the community or make any agreement with respect thereto. In the case where a spouse lacks legal capacity to enter into a contract and does not have a conservator, either a conservator must be appointed so the spouse can join in or consent to the transaction, or a court proceeding must be brought to authorize the transaction. There are specific provisions of the California Probate Code that establish procedures for obtaining the appropriate authorizations. If you are involved in a real property transfer involving community property, and there is a question about the mental capacity of one of the spouses, you should consult a knowledgeable real property attorney about the procedures available for addressing the situation.
So remember, in most situations involving the transfer of community property, it takes two, baby.