Married couple should consider holding title as “community property with right of survivorship.”

More stuff I didn’t know.  Yikes, this has been around since 2001?

I finally got around to writing my case summary of Brace.  I forgot that Judge Lafferty wrote the opinion for the BAP a while back.  I can’t wait to hear his comments at the 9th Circuit Review on January 23, 2021 (click here to join the cdcbaa and see the program for free).  One thing the court commented on that I didn’t know is that there is a new “form of title,” new since 2001 I guess.   The Supreme Court said:

In addition, the rule that form of title controls at death was a key motivation for the Legislature’s 2000 enactment of Assembly Bill No. 2913, which created a new form of title: community property with a right of survivorship. (… Civ. Code, § 682.1.)  This form of ownership combines the tax benefits of holding community property at the death of one spouse — a stepped-up basis in the full value of the community property — with the right of survivorship in a joint tenancy.

Civil Code Section 682.1 says:

(a) Community property of spouses, when expressly declared in the transfer document to be community property with right of survivorship, and which may be accepted in writing on the face of the document by a statement signed or initialed by the grantees, shall, upon the death of one of the spouses, pass to the survivor, without administration, pursuant to the terms of the instrument, subject to the same procedures, as property held in joint tenancy.  Prior to the death of either spouse, the right of survivorship may be terminated pursuant to the same procedures by which a joint tenancy may be severed.  Part 1 (commencing with Section 5000 ) of Division 5 of the Probate Code and Chapter 2 (commencing with Section 13540), Chapter 3 (commencing with Section 13550), and Chapter 3.5 (commencing with Section 13560 ) of Part 2 of Division 8 of the Probate Code apply to this property.

(b) This section does not apply to a joint account in a financial institution to which Part 2 (commencing with Section 5100 ) of Division 5 of the Probate Code applies.

(c) This section shall become operative on July 1, 2001, and shall apply to instruments created on or after that date.

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