Code Section Group

Probate Code - PROB

DIVISION 2. GENERAL PROVISIONS [100 - 890]

  ( Division 2 enacted by Stats. 1990, Ch. 79. )

PART 1. EFFECT OF DEATH OF MARRIED PERSON ON COMMUNITY AND QUASI-COMMUNITY PROPERTY [100 - 105]
  ( Part 1 enacted by Stats. 1990, Ch. 79. )

100.
  

(a) Upon the death of a person who is married or in a registered domestic partnership, one-half of the community property belongs to the surviving spouse and the other one-half belongs to the decedent.

(b) Notwithstanding subdivision (a), spouses may agree in writing to divide their community property on the basis of a non pro rata division of the aggregate value of the community property or on the basis of a division of each individual item or asset of community property, or partly on each basis. Nothing in this subdivision shall be construed to require this written agreement in order to permit or recognize a non pro rata division of community property.

(Amended by Stats. 2016, Ch. 50, Sec. 79. (SB 1005) Effective January 1, 2017.)

101.
  

(a) Upon the death of a person who is married or in a registered domestic partnership, and is domiciled in this state, one-half of the decedent’s quasi-community property belongs to the surviving spouse and the other one-half belongs to the decedent.

(b) Notwithstanding subdivision (a), spouses may agree in writing to divide their quasi-community property on the basis of a non pro rata division of the aggregate value of the quasi-community property, or on the basis of a division of each individual item or asset of quasi-community property, or partly on each basis. Nothing in this subdivision shall be construed to require this written agreement in order to permit or recognize a non pro rata division of quasi-community property.

(Amended by Stats. 2016, Ch. 50, Sec. 80. (SB 1005) Effective January 1, 2017.)

102.
  

(a) The decedent’s surviving spouse may require the transferee of property in which the surviving spouse had an expectancy under Section 101 at the time of the transfer to restore to the decedent’s estate one-half of the property if the transferee retains the property or, if not, one-half of its proceeds or, if none, one-half of its value at the time of transfer, if all of the following requirements are satisfied:

(1) The decedent died domiciled in this state.

(2) The decedent made a transfer of the property to a person other than the surviving spouse without receiving in exchange a consideration of substantial value and without the written consent or joinder of the surviving spouse.

(3) The transfer is any of the following types:

(A) A transfer under which the decedent retained at the time of death the possession or enjoyment of, or the right to income from, the property.

(B) A transfer to the extent that the decedent retained at the time of death a power, either alone or in conjunction with any other person, to revoke or to consume, invade, or dispose of the principal for the decedent’s own benefit.

(C) A transfer whereby property is held at the time of the decedent’s death by the decedent and another with right of survivorship.

(b) Nothing in this section requires a transferee to restore to the decedent’s estate any life insurance, accident insurance, joint annuity, or pension payable to a person other than the surviving spouse.

(c) All property restored to the decedent’s estate under this section belongs to the surviving spouse pursuant to Section 101 as though the transfer had not been made.

(Enacted by Stats. 1990, Ch. 79.)

103.
  

Except as provided by Section 224, if spouses die leaving community or quasi-community property and it cannot be established by clear and convincing evidence that one spouse survived the other:

(a) One-half of the community property and one-half of the quasi-community property shall be administered or distributed, or otherwise dealt with, as if one spouse had survived and as if that one-half belonged to that spouse.

(b) The other one-half of the community property and the other one-half of the quasi-community property shall be administered or distributed, or otherwise dealt with, as if the other spouse had survived and as if that one-half belonged to that spouse.

(Amended by Stats. 2016, Ch. 50, Sec. 81. (SB 1005) Effective January 1, 2017.)

104.
  

Notwithstanding Section 100, community property held in a revocable trust described in Section 761 of the Family Code is governed by the provisions, if any, in the trust for disposition in the event of death.

(Amended by Stats. 1992, Ch. 163, Sec. 119. Effective January 1, 1993. Operative January 1, 1994, by Sec. 161 of Ch. 163.)

104.5.
  

Transfer of community and quasi-community property to a revocable trust shall be presumed to be an agreement, pursuant to Sections 100 and 101, that those assets retain their character in the aggregate for purposes of any division provided by the trust. This section shall apply to all transfers prior to, on, or after January 1, 2000.

(Added by Stats. 1999, Ch. 263, Sec. 1. Effective January 1, 2000.)

105.
  

This part does not apply where the decedent died before January 1, 1985, and the law applicable prior to January 1, 1985, continues to apply where the decedent died before January 1, 1985.

(Enacted by Stats. 1990, Ch. 79.)

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