California Community Property Laws
California keeps attaching consequences to a date stamped by a county recorder. Family Code section 1102(d) gives a spouse one year from the filing for record of an instrument to attack a deed the other signed alone. Probate Code section 13540 opens a power forty days after a death and lets the survivor record an affidavit proving it. Family Code section 1100 decides which transactions need written consent before any of that. This page follows those rules through an intact marriage and into a death. Dissolution is a different subject entirely — the fiduciary duty, the equal-division command and the valuation date all belong to the companion page linked further down. What follows is general legal information and not advice about anybody’s case.
The Short Version
Family Code section 1100(a) gives either spouse management and control of the community personal property with like absolute power of disposition, other than testamentary, as they have over their separate estate. Subdivisions (b) and (c) then require the other spouse’s written consent for a gift or a below-value disposition, and for anything touching the family dwelling’s furniture and furnishings or the other spouse’s and children’s clothing. Subdivision (d) gives the spouse running a community business primary management, on condition of prior written notice before disposing of substantially all its personal property.
Real property is stricter and then, abruptly, more forgiving. Section 1102(a) requires both spouses to join in executing any instrument leasing community real property for more than a year, or selling, conveying or encumbering it. But section 1102(c) presumes valid the sole instrument of a record-title spouse given to someone acting in good faith without knowledge of the marriage, and section 1102(d) bars an action to avoid it one year after the instrument was filed for record. At a death, Probate Code sections 13500 and 13540 combine to move community real property to a surviving spouse without administration, forty days on, with a recordable affidavit. All of it is dated paper in a county office — which is where we work, once a lawful purpose is settled.
Watch: California Consent and the Recorder
Written consent, a one-year clock, and forty days.
Watch Overview
The Transactions That Need the Other Spouse in Writing
Family Code section 1100(a) to (d).
Section 1100(a) is the general grant, and it is a wide one. Except as provided in subdivisions (b), (c) and (d) and in sections 761 and 1103, either spouse has the management and control of the community personal property, whether acquired before or after 1 January 1975, with like absolute power of disposition, other than testamentary, as the spouse has of the separate estate of the spouse. Then the section names its exceptions, and each names a document.
Subdivision (b): a spouse may not make a gift of community personal property, or dispose of community personal property for less than fair and reasonable value, without the written consent of the other spouse. Two carve-outs follow — gifts mutually given by both spouses to third parties, and gifts given by one spouse to the other. Note the second limb: a below-value disposition is caught even where nobody would call it a gift.
Subdivision (c): a spouse may not sell, convey or encumber community personal property used as the family dwelling, or the furniture, furnishings or fittings of the home, or the clothing or wearing apparel of the other spouse or the minor children which is community personal property, without the other spouse’s written consent. It is a household-goods rule of the kind Nevada also keeps at NRS 123.230(5) and Louisiana at Civil Code article 2347, and California’s version reaches clothing.
The business, and the notice that does not undo anything
Subdivision (d) is the one most likely to be litigated. A spouse operating or managing a business, or an interest in a business, that is all or substantially all community personal property has the primary management and control of it. The section then defines the term: primary management and control means the managing spouse may act alone in all transactions, but shall give prior written notice to the other spouse of any sale, lease, exchange, encumbrance or other disposition of all or substantially all of the personal property used in the operation of the business — including personal property used for agricultural purposes — whether or not title is held in the name of only one spouse. Written notice is not required where the law otherwise applicable to the transaction prohibits it.
And then the sting is drawn: remedies for failure to give prior written notice are only as specified in section 1101, and a failure to give notice shall not adversely affect the validity of a transaction nor of any interest transferred. The buyer keeps the business. The remedy runs against the spouse. What section 1101 does with that breach — and it does a great deal — is covered on our page for California marital property laws, which handles the fiduciary duty, the equal division under section 2550 and the valuation date. This page does not revisit any of them.
Both Signatures — and Then a One-Year Clock
Family Code section 1102.
Section 1102(a) states the rule for land. Except as provided in sections 761 and 1103, either spouse has the management and control of the community real property, whether acquired before or on or after 1 January 1975 — but both spouses, either personally or by a duly authorised agent, are required to join in executing an instrument by which that community real property or an interest therein is leased for a longer period than one year, or is sold, conveyed or encumbered. Subdivision (b) exempts a lease, mortgage, conveyance or transfer of real property between the spouses themselves.
So far this reads like Nevada’s NRS 123.230(3), Idaho Code 32-912 or NMSA 1978, 40-3-13. What happens next is where California parts company with all three.
The good-faith presumption
Section 1102(c)(2) provides that the sole lease, contract, mortgage or deed of either spouse holding the record title to community real property, given to a lessee, purchaser or encumbrancer in good faith without knowledge of the marriage relation, shall be presumed valid if executed on or after 1 January 1975. Paragraph (1) keeps the older, gendered version alive for instruments executed before that date, presuming valid the sole instrument of a husband holding record title. Both paragraphs turn on record title and on the counterparty’s knowledge, neither of which is a question about the marriage.
And the clock
Section 1102(d) closes it. An action to avoid an instrument mentioned in the section, affecting any property standing of record in the name of either spouse alone and executed by that spouse alone, shall not be commenced after the expiration of one year from the filing for record of that instrument in the recorder’s office in the county in which the land is situated.
One year, running from a recording date. Set that against the neighbours and the spread is striking: New Mexico makes the same one-signature instrument void and of no effect under NMSA 1978, 40-3-13, with no period at all and a written ratification available at any time; Louisiana makes it a relative nullity under Civil Code article 2353; Washington gives the omitted spouse ninety days from the recording of title to file a claim under RCW 26.16.100 and then gives a bona fide purchaser everything. California is in the middle, and its number is one year from a date printed on the instrument itself. Subdivision (e) leaves one door open regardless: nothing in the section stops a spouse encumbering their own interest in community real property under section 2033 to pay reasonable attorney’s fees to retain counsel in a dissolution, nullity or legal separation proceeding.
What Each Transaction Requires
Family Code sections 1100 and 1102, side by side.
| The transaction | What California requires | Section |
|---|---|---|
| Ordinary dealing in community personal property | Either spouse alone, with like absolute power of disposition as over their separate estate. | 1100(a) |
| A gift, or a disposition for less than fair and reasonable value | The other spouse’s written consent. Writing, not consent | 1100(b) |
| Anything touching the family dwelling’s furnishings, or the other spouse’s or children’s clothing | The other spouse’s written consent. | 1100(c) |
| Disposing of substantially all the personal property of a community business | Prior written notice to the other spouse — but failure does not invalidate the transaction. | 1100(d) |
| Selling, conveying or encumbering community real property, or leasing it for over a year | Both spouses must join in executing the instrument, personally or by a duly authorised agent. | 1102(a) |
| Attacking a one-signature instrument on record | Within one year of the instrument being filed for record in that county. | 1102(d) |
Four of these six rows are satisfied or defeated by a document: a written consent, a written notice, two signatures, a recording date. That is why a California question of this kind is answered from a recorder’s index and a transaction file before it is argued. We read the record and date it; a California attorney decides what it means.
Which Creditor Reaches Which Pot
Family Code sections 911, 914 and 916.
Section 911(a) is the most mechanical protection in the California scheme. The earnings of a married person during marriage are not liable for a debt incurred by that person’s spouse before marriage. And after those earnings are paid, they remain not liable so long as two conditions hold: they are held in a deposit account in which the person’s spouse has no right of withdrawal, and they are uncommingled with other property in the community estate, except property insignificant in amount. Subdivision (b) borrows the definition of a deposit account from Commercial Code section 9102(a)(29) and defines earnings as compensation for personal services performed, whether as an employee or otherwise.
Read that as a records instruction and it becomes concrete. The protection survives on the signature card and on the deposit history. A joint account defeats the first condition; one transfer in from a community source can defeat the second. Neither is a question about anybody’s intentions.
Necessaries, and personal liability
Section 914(a) creates liability that runs against the person rather than only against a pot. Notwithstanding section 913, a married person is personally liable for a debt incurred by their spouse during marriage for the necessaries of life of that spouse before the date of separation, and, except as section 4302 provides, for the common necessaries of life of that spouse after separation. Subdivision (b) allows separate property to be applied, and creates a right of reimbursement where separate property was applied at a time when non-exempt community property or the spouse’s separate property was available and was not applied — to the extent that other property was available.
Subdivision (c) then sets the limitation period where the spouse for whom the person is liable has died, and it turns on a notice: the Code of Civil Procedure section 366.2 period applies, unless the surviving spouse had actual knowledge of the debt before that period expired and the deceased spouse’s personal representative failed to give the creditor timely written notice of the probate administration in the manner provided by Probate Code section 9050 — in which case the longer periods in Code of Civil Procedure section 337 or 339 apply. Whether a notice was given, and when, is a probate-file fact with years riding on it.
After a division, the exposure moves
Section 916(a) governs what happens once the community and quasi-community property have been divided under Division 7. The separate property a married person owns at the time of division, and the property they received in the division, is liable for a debt they incurred before or during marriage, and they are personally liable for it, whether or not it was assigned to the spouse for payment. It is not liable for a debt the other spouse incurred, and they are not personally liable, unless that debt was assigned to them in the division — and even where it was, a money judgment entered after the division may not be enforced against the property or against the person unless that person is made a party to the judgment for the purpose of that paragraph. Subdivision (b) gives a right of reimbursement with interest at the legal rate, plus reasonable attorney’s fees incurred in enforcing it. What survives a California judgment is set out on our page for California asset exemptions from creditors.
At a Death: Forty Days, and No Administration
Probate Code sections 100, 101, 6401, 13500 and 13540.
Probate Code section 100(a) divides the community at the moment of death: 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. Section 101(a) applies the identical rule to the decedent’s quasi-community property where the decedent was domiciled in this state. Both sections carry a subdivision (b) permitting the spouses to agree in writing to divide on a non pro rata basis of aggregate value rather than item by item — and both add that nothing in the subdivision requires a written agreement in order to permit or recognise such a division.
Section 6401 makes the intestate consequence: the surviving spouse’s intestate share is the one-half of the community property that belongs to the decedent under section 100, and the one-half of the quasi-community property that belongs to the decedent under section 101. On separate property, subdivision (c) tapers — the entire intestate estate where the decedent left no issue, parent, sibling or issue of a deceased sibling; one-half where there is one child or the issue of one deceased child, or no issue but a parent or their issue; and one-third where there is more than one child, or one child and the issue of a deceased child, or the issue of two or more deceased children.
The property that skips administration entirely
Section 13500 is the provision that keeps a great many California estates out of court. Except as the chapter provides, where a spouse dies intestate leaving property that passes to the surviving spouse under section 6401, or dies testate and devises all or part of their property to the surviving spouse, the property passes to the survivor subject to chapters 2 and 3 of the same part, and no administration is necessary.
And the forty-day rule
Section 13540 supplies the timing and the paperwork. Except as provided in section 13541, after forty days from the death of a spouse, the surviving spouse — or the personal representative, guardian of the estate or conservator of the estate of the surviving spouse — has full power to sell, convey, lease, mortgage or otherwise deal with and dispose of the community or quasi-community real property. The right, title and interest of any grantee, purchaser, encumbrancer or lessee is free of the rights of the estate of the deceased spouse, of the devisees, and of the creditors of the deceased spouse, to the same extent as if the property had been owned as the separate property of the surviving spouse.
Subdivision (b) is the part that leaves a trail: the survivor may record, before or together with the instrument making the disposition, an affidavit of the facts that establish the right of the surviving spouse to make it. Subdivision (c) preserves the survivor’s own liability under sections 13550 to 13553 and chapter 3.5. So a California community-property parcel can change hands forty-one days after a death, with no probate, on the strength of a recorded affidavit — and that affidavit is the document a later examiner reads.
Registered domestic partners, throughout
Family Code section 297.5 makes every one of the rules above apply beyond marriage. Registered domestic partners have the same rights, protections and benefits, and the same responsibilities, obligations and duties under law — whether from statute, regulation, court rule, policy or common law — as are granted to and imposed upon spouses; former partners are treated as former spouses and a surviving partner as a widow or widower. Subdivision (k)(1) supplies the conversion that matters for community property: for the purposes of community property, mutual responsibility for debts to third parties and the other property rights between the partners, any reference to the date of a marriage is deemed to refer to the date of registration of a domestic partnership with the state. A registration date, held by the Secretary of State, does the work a marriage date does elsewhere.
Where a California File and the Record Diverge
Six recurring gaps, none of which requires an accusation.
A Gift With No Written Consent
Family Code 1100(b) needs the other spouse’s consent in writing, and catches a below-value disposition as well as an outright gift.
A One-Signature Deed Older Than a Year
Family Code 1102(d) bars the action one year after the instrument was filed for record, so the recording date is the whole question.
Business Property Moved Without Notice
Family Code 1100(d) requires prior written notice — and expressly does not invalidate the transaction if it was missing.
A Commingled Deposit Account
Family Code 911(a) protects paid earnings only while the account has no spousal right of withdrawal and stays uncommingled.
A Sale Forty-One Days After a Death
Probate Code 13540 permits it with no administration, on a recordable affidavit under subdivision (b).
A Registration Date Instead of a Wedding
Family Code 297.5(k)(1) substitutes the date of registration of a domestic partnership for the date of a marriage.
None of these requires bad faith and we allege none. Each is a document — a written consent, a recorded instrument, a signature card, an affidavit, a registration — that exists with a date or does not. What we hand over is what the instruments say, when they were filed, and where the record and the account of events fail to line up.
How a California File Is Built
Purpose, then the recording dates, then the offices, then counsel.
Settle the Permitted Purpose
A search begins only after a purpose FCRA, GLBA and DPPA permit is settled and written down. Where finding someone would expose that person to harm, we decline and we explain the refusal. California courts may enjoin a party from contacting, coming within a specified distance of, or disturbing the peace of another under Family Code section 6320; where a request looks like an attempt to defeat such an order, it ends at this step.
Pin the Dates the Statutes Run From
Family Code 1102(d) runs one year from a filing for record, Probate Code 13540 runs forty days from a death, and Family Code 297.5(k)(1) substitutes a registration date for a marriage date. All three are fixed to filed documents before anything else is searched.
Read What California Requires to Be Filed
Fifty-eight county recorder indexes, the Secretary of State’s entity, agent and domestic-partnership registers, fictitious business name statements, UCC records, titled property, superior court probate files and address history — all obtained openly.
Hand It Over With the Instrument and the Date
Instrument, recording or filing date, the office it came from and a plain statement of confidence, shaped so a California attorney can put it straight into a probate petition, a quiet-title action or a claim.
Who Uses This California Research
Instruments from us; the legal call from counsel.
California Probate Counsel
The forty-day window, evidenced
Surviving Spouses
Section 13540 affidavits located
Title and Escrow Officers
One-signature deeds and their dates
Creditors After a Division
Section 916 exposure, mapped
Registered Domestic Partners
A registration date established
Business Valuators
Section 1100(d) notices traced
The role changes; the constraint does not. Family Code 1102(d) is decided by a recording date, Probate Code 13540 by a death date plus forty days, and Family Code 911 by what a deposit account did. We read the record and date it, and there we stop: characterising, valuing and advising on California law are all somebody else’s job. Locating a person is a different service again — skip tracing — and its California page is finding someone in California.
The Recorder’s Date, and the Line We Do Not Cross
Family Code section 1102(d) starts a one-year clock from the day an instrument is filed for record; Probate Code section 13540 opens a power forty days after a death and lets the survivor record an affidavit to prove it. California keeps pinning consequences to a date stamped by a county recorder, so a California file from us is built out of recorder indexes across fifty-eight counties, Secretary of State entity and agent filings, fictitious business name statements, titled property and address history. Each item arrives with the instrument, the date it was recorded or filed, and an honest measure of our confidence in it. We establish a lawful purpose, permitted by FCRA, GLBA and DPPA, before we search. We do not misrepresent who is asking in order to be handed a document, we work by no pretext, and we do not open or read financial accounts. Nobody here practises law and nobody here is a licensed private investigator. A recorded instrument is public; a consumer credit file is not, this is no credit bureau, and what you receive from us is nobody’s consumer report and cannot decide a hire, a tenancy, a loan or a policy. Whether a transaction survives section 1102 is your attorney’s judgment, not ours. Records work since 2004.
California Community Property Questions
Answered from the Family Code and Probate Code as read at source.
What can one California spouse not do alone with community personal property?
Family Code section 1100(a) gives either spouse management and control of the community personal property with like absolute power of disposition, other than testamentary, as they have over their own separate estate — and then subdivisions (b) and (c) take two things back. A spouse may not make a gift of community personal property, or dispose of it for less than fair and reasonable value, without the written consent of the other, excepting gifts the spouses mutually give to third parties and gifts between the spouses themselves. And a spouse may not sell, convey or encumber community personal property used as the family dwelling, or the furniture, furnishings or fittings of the home, or the clothing or wearing apparel of the other spouse or the minor children, without the other’s written consent. General legal information, not legal advice.
Who controls a community-property business?
The spouse running it, subject to a notice duty. Family Code section 1100(d) gives a spouse who is operating or managing a business, or an interest in a business, that is all or substantially all community personal property the primary management and control of it. Primary management means that spouse may act alone in all transactions, but shall give prior written notice to the other spouse of any sale, lease, exchange, encumbrance or other disposition of all or substantially all of the personal property used in the operation of the business, whether or not title is held in one name. Notice is not required where the law governing the transaction prohibits it. The remedies for failing to give notice are only those in section 1101, and a failure does not invalidate the transaction or the interest transferred.
Do both California spouses have to sign a deed?
For community real property, yes. Family Code section 1102(a) gives either spouse management and control of community real property, but requires both spouses, personally or by a duly authorised agent, to join in executing any instrument by which that community real property or an interest in it is leased for longer than one year, or is sold, conveyed or encumbered. Subdivision (b) removes transactions between the spouses themselves from the rule. Subdivision (e) preserves a spouse’s ability to encumber their own interest under section 2033 to pay reasonable attorney’s fees to retain counsel in a dissolution, nullity or legal separation proceeding.
What if only one spouse signed?
Two provisions decide it and both favour the outside party. Family Code section 1102(c)(2) presumes valid the sole lease, contract, mortgage or deed of either spouse holding record title to community real property, given to a lessee, purchaser or encumbrancer in good faith without knowledge of the marriage relation, where executed on or after 1 January 1975; (c)(1) does the same for a husband holding record title before that date. Then section 1102(d) sets the clock: an action to avoid such an instrument, affecting property standing of record in the name of either spouse alone and executed by that spouse alone, shall not be commenced after the expiration of one year from the filing for record of that instrument in the recorder’s office of the county where the land is situated.
Is my separate property at risk for my spouse’s debts in California?
Not for the debts themselves. Family Code section 911(a) protects earnings specifically: the earnings of a married person during marriage are not liable for a debt incurred by that person’s spouse before marriage — and after those earnings are paid they remain not liable so long as they are held in a deposit account in which the spouse has no right of withdrawal, and are uncommingled with other property in the community estate, except property insignificant in amount. That is an unusually mechanical protection: it survives on two conditions, both of which are facts about an account rather than arguments about intent.
What are ‘necessaries of life’ and why do they matter?
They are the exception that reaches a spouse personally. Family Code section 914(a) makes a married person personally liable for a debt incurred by their spouse during marriage for the necessaries of life before the date of separation, and for the common necessaries of life after separation. Subdivision (b) lets separate property be applied to satisfy it, and gives a right of reimbursement where separate property was used at a time when non-exempt community property or the spouse’s separate property was available and was not applied. Subdivision (c) sets which limitation period applies if the spouse for whom the person is liable dies, and turns on whether the estate’s personal representative gave the creditor timely written notice of the probate administration.
Does a divorce end a creditor’s ability to reach the other spouse?
It reallocates it, and section 916 is precise about how. After division of the community and quasi-community property, the separate property a married person owns at the time of division and the property they received in the division is liable for a debt they incurred before or during marriage, whether or not it was assigned to the other spouse for payment. It is not liable for a debt the other spouse incurred, unless it was assigned to this person in the division. And where it was so assigned, a money judgment entered after the division cannot be enforced against the property or the person unless that person is made a party to the judgment for that purpose. Subdivision (b) gives a right of reimbursement with interest at the legal rate, plus reasonable attorney’s fees for enforcing it.
What happens to California community property when a spouse dies?
Probate Code section 100(a) divides it: one-half belongs to the surviving spouse and the other one-half to the decedent. Section 101(a) does the same for the decedent’s quasi-community property where the decedent was domiciled here. Section 6401(a) and (b) make the intestate share of the surviving spouse the decedent’s half of each. Section 13500 then provides that where property passes to the surviving spouse under section 6401, or is devised to them by will, it passes to the survivor and no administration is necessary. Section 13540 adds the timing: after forty days from the death the surviving spouse has full power to sell, convey, lease, mortgage or otherwise deal with the community or quasi-community real property, and a grantee’s title is free of the estate’s, the devisees’ and the creditors’ rights to the same extent as if it had been the survivor’s separate property — with an affidavit of the establishing facts recordable before or with the instrument.
Exactly where does your California work end?
At the county recorder and the Secretary of State. We read what has been recorded and filed, we date it, and we hand it over. We do not decide whether a one-signature deed is still voidable under Family Code section 1102(d), whether section 911 shelters a deposit account, or what section 916 did to liability after a division — every one of those is a California attorney’s judgment. We do not obtain records by misstating who is asking, and we never open a financial account. No one here is a lawyer or a licensed private investigator, and this is no credit bureau, so nothing from us is a consumer report or usable to settle a hire, a tenancy, a loan or a policy. Where a request would help someone defeat a protective order issued under Family Code section 6320, or otherwise expose a person who left for safety, we say no.
Find the Instrument, Then Read the Clock
In California the answer is usually a date: one year from the filing for record of a one-signature deed, forty days from a death before a survivor may sell, a registration date standing in for a wedding. Each of those sits in a county recorder’s index, a probate file or a Secretary of State register. Say what California law entitles you to look for and which of the fifty-eight counties matter; the instruments come back with their filing dates attached, nothing added and nothing implied. Legitimate matters usually see a first read within 24 hours. Begin on the contact page.
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