Legally married Gay spouses can't own Community (Entirety) property

Here in Cali, state law makes its clear that only 'husband and wife' can own their real estate as 'Community Property'.

Community Property is a special type of ownership, with rights of survival, between specifically, husband and wife. In some states, the terms "Entirety" or simply "Joint tenants" is used to describe property held jointly by husband and wife.

What about the 17 states that now recognize gay marriage? Do they recognize Community/Entirety/Joint property the way husband and wife do in virtually all states?

As far as the deed is concerned, in such cases like California where gay marriage is now as of June 28, 2013 legally recognized - thru Court - what in the world will California's DRE/Real Estate Commission do about gay spouses wanting to have their entitlement to Community Property with right of survivorship (as opposed to tenants in common, or having to put joint tenants in the deed as if they are not officially married or something)?

Just wonderin, cause my neighbors whose garden I was workin on these lovely day, recently tied the knot here in Cali and asked me since they know of my JD background (I graduated NYU law school, but would rather be dead than work in the current legal atmosphere of whats left of Amerika!)

reply to post by gardener


Are you sure about this? Doesn't sound right, especially after all the hassle gays went through to get married and then for gay marriage to be legalized in California. You'd think that this would have been handled somewhere in there.

reply to post by gardener


California does not use a literal definition of the term husband & wife to determine property rights or holdings within the State.

I have plenty of gay friends who own property in Cali and have had absolutely 0 problems. 2 of them are lawyers and I would expect them to complain if this was the case.

~Tenth

sounds like an oversight of those passing the orignial laws to allow.

Should of added an addendum that would "allow all the same benefits and rights as" in to grandfather out old laws that are listed as such.

Im sure this is due to rushing to pass a law with out thinking, and not some malicious government oversight, I am sure Cali will handle it as they are SUPER liberal.

Itll get fixed there, there question is if it will else where.


Frankly MY view is you should be able to will and give your property to who ever the hell you please with out government interference. (estate tax, which the rich have already bypassed and only now effect middle class)

IF you can't do you ever really own anything?

reply to post by gardener


Sorry, your thread is not correct. A quick search on Google brings me the following information:


Same-sex couples in three states could benefit from using community property rules to allocate income and deductions on their federal tax return.

Effective for tax years after June 1, 2010, the IRS determined that state-level community property laws apply to registered domestic partners and persons in a civil union. Under community property rules, community income and community deductions are divided equally between both taxpayer's federal income tax returns.

These new rules affect same-sex married couples and registered domestic partners in community property states that also allow same-sex marriage or civil unions.  This is because only in these states are same-sex couples considered married and therefore considered to have community property.  These states are:

California 
Nevada 
Washington  

taxes.about.com...

What was your source to your OP?

www.leginfo.ca.gov...

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.

^Just one of the many law instances where it says husband and wife (in context of Community property)

Also, the DRE real estate law codes state "ONLY husband and wife can have community property"

If someone knows of a way I can upload a pdf, lemme know. Otherwise, I guess I could post a screenshot of my law code files.

Screenshot:




Hopefully California Dept Real Estate updates these sexist outdated 'laws'

To reiterate my query in the OP:

what in the world will California's DRE/Real Estate Commission do about gay spouses wanting to have their entitlement to Community Property with right of survivorship (as opposed to tenants in common, or having to put joint tenants in the deed as if they are not officially married or something)?

reply to post by gardener



In Washington State, a community property state, same sex marriages as well as same sex domestic partnerships who are registered as such, benefit from the community property law.

On a side note: Effective June 30, 2014, any WA State registered same-sex domestic partnership where neither party is sixty-two years of age or older, is automatically converted into a marriage as of June 30, 2014, unless dissolved or converted to marriage prior to that date.

So California LAW does not even recognize gay marriage thus nor gay spouses' community property, but California Court rulings (and federal tax laws) suggest the Court may acknowledge them?

gaymarriage.procon.org...

*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.

I see someone posted IRS info about gay spouses' community property recognized for tax purposes... but what about survivorship and other real estate transactions (Which is the the whole point of my OP)?

reply to post by gardener


Ownership of Real Property by Same-Sex Couples in California

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.

You may want to read the whole thing and I don't know if any of the real estate laws have been changed since this was written

reply to post by gardener


It seems like the semantics used in the legal documents is simply outdated. The rules still apply accross the board for gay and heterosexual couples; although the documents read "husband and wife", they would still apply to alike situations involving different genders of married couples.

Survivorship in California needs to be opted for in order for it to apply to community property, which voids the rights of the deceased to have any say in that property in their legal will. If survivorship in not chosen when opting for community property, by default the ownership property of the deceased is determined by what is in the will of the deceased. This is the same with both same-sex and opposite-sex marriages.

reply to post by gardener


Does one side of a marriage retain the right? Husband? or Wife? If so than shouldn't it still apply to Husband and Husband or Wife and Wife?

Has it been denied? Are their cases being contested?