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Nothing in this section shall be construed to apply to a
lease, mortgage, conveyance, or transfer of real property or of any
interest in real property between husband and wife.
*On Feb. 7, 2012 the Ninth Circuit Court of Appeals affirmed that California’s anti-gay marriage initiative known as Proposition 8 was unconstitutional. That case was appealed to the US Supreme Court. On June 26, 2013, in a 5-4 decision, the Supreme Court ruled that defenders of Proposition 8 lacked "standing" to represent the case. As a result, the Ninth Circuit Court of Appeals lifted its stay blocking same-sex marriages on June 28, 2013.
D. Community interests (also commonly called community property) apply to property acquired after marriage or after becoming a registered domestic partnership. (For domestic partnership see Family Code §297 et seq) Community property provides for equal ownership interests between the spouses or domestic partners (absent a community property agreement to the contrary) but does not have a right of survivorship. Any community property, at the time a spouse or registered domestic partner dies, would be subject to probate.
In 2001, the California legislature created a subtype of community property interest, known as “community property with right of survivorship” that is similar to a joint tenancy, but requires that the joint tenants be married or be registered domestic partners. Community property with right of survivorship must be expressly stated in the deed. It creates the right of survivorship afforded in a joint tenancy to the community property. However, the creditors of the deceased spouse/registered domestic partner have rights against the deceased’s interest, just as they would in a normal community property situation (whereas they would not in a joint tenancy). There may also be tax advantages afforded by a community property with right of survivorship interest as opposed to a joint tenancy for which clients should consult their tax attorneys, CPAs or tax advisors.