DID YOU KNOW BY ATTORNEY F.M. ZAVALA

Effect of Sole Title

[a] Resolving Potential Conflict in Presumptions

The “common law form of title” presumption, discussed in [1][b], above, raises a presumption of separate ownership in the titleholder. Fam. Code § 760.

Conversely, the general statutory presumption applicable to property acquired during a marriage or registered domestic partnership provides that such property is presumed to be community property.


While it is uncertain whether the form of title presumption ever applies in dissolution proceedings, it is clear that it does not apply when it conflicts with the community property presumption. In re Brace (2020) 9 Cal. 5th 903, 266 Cal. Rptr. 3d 298.


In addition, when one spouse gains an unfair advantage over the other in a property transaction—thereby raising a presumption of undue influence—it is improper to apply the common law form of title presumption in order to characterize the property. Thus, for example, when a husband refused to cosign an automobile loan until his wife deeded to him (in sole title) her share of the parties’ jointly held realty, the common law form of title presumption was held inapplicable and the deed transferring the realty was ordered set aside. Such a purported transmutation is subject to the fiduciary standards to which spouses are bound as a matter of law, and public policy dictates that the common law form of title presumption not be applied when it conflicts with the principle that a spouse may not obtain an unfair advantage over the other spouse.

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