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POSTED ON: December 14, 2020California transmutation agreements enable married couples to "transmute" community property into separate property, and vice versa. A transmutation agreement can also be used to transfer property between spouses. There are pros and cons to utilizing a transmutation agreement. They are usually used as a tool for postnuptial property distribution, tax purposes, establishing ownership over certain assets and property, and more.
Have you ever heard of a prenuptial agreement? These are documents drafted and signed before a couple marries, dictating who owns what and what belongs to whom. These documents are meant to establish certain property rights during the marriage and ensure that should the couple ever divorce, these rights will serve as a simple guide to easily split community property while indisputably dictating what property remains separate.
Prenuptial agreements effectively bypass California community property rules, dictating that all community property must be split 50/50 during a divorce. A transmutation agreement is a postnuptial agreement. In this sense, it is a document that allows married couples to change the nature of the property they own for their benefit, either to avoid a messy divorce due to property disputes in the future or for tax benefits and other assorted purposes.
The crux of transmutation agreements is the distinction between community and separate property in California. To understand how a transmutation agreement could benefit you, it is essential to know how these two distinctions differ.
California is a community property state. The primary reason community property laws exist is to simplify divorce proceedings. In community property states, two divorcing spouses must equally split their community property. All properties and assets acquired during the marriage while domiciled in California are community property unless they take steps to transmute the property.
This includes income and debt generated during marriage. Let us say you buy a car in most states. Even if you are married, if it is your name on the car's title, that car is yours. If you are married and living in California, then half of the vehicle belongs to your spouse – even if they never use it.
There are notable exceptions – if you earn money in a common-law state, for example, and use it to buy something in a community property state, it may count as separate property. Buying a property in a common-law state with money earned in a community property state, on the other hand, may make it half yours and half your spouse's.
Community property states take "what's yours is mine" very literally. The only assets and property typically excluded from the community property rule are gifts and inheritances unless these gifts or inheritances have somehow become "co-mingled" with community property. Any assets, property, income, or debts generated before the marriage count as separate property, meaning they belong solely to one spouse.
When a couple divorces in a community property state, they must split everything they own together in half. However, there are a few ways to do this. Couples are entitled to work out their arrangements and do not necessarily have to sell and split all joint property proceeds.
For example, a couple can agree to let Spouse A keep the house if Spouse B gets equivalent value assets in return. Community property rules are statewide. If you live in multiple states, it is the state that officially houses your legal domicile that determines whether you must live by community property laws or common law.
Postnuptial agreements generally satisfy three needs:
In some instances, a transmutation agreement may also be used to gift property and establish ownership for estate planning purposes. Establishing evidence of ownership may be particularly important in cases of inheritance. Under community property rules, inheritances and gifts count as separate property.
This means if your parents gift you a car, then it remains your car entirely, rather than being both your car and your spouse's car. Similarly, if your uncle dies and leaves you a beachfront property, it is your property, separate from marriage. However, suppose your spouse invests in the car or homemaking improvements or providing funds for you to expand the house. In that case, it may become co-mingled, effectively turning it into community property.
A transmutation agreement can clarify that this property is, in fact, separate – or it can alternatively set-in-stone that it does indeed count as community property, depending on your needs and intentions. Co-mingling can lead to nasty and unwanted surprises – a transmutation agreement can ensure that these surprises are addressed long before they become a problem.
It is worth mentioning that any assets transferred through a transmutation agreement count as a gift, with the appropriate gift tax implications. There is no functional tax difference between writing a deed transferring real estate to your spouse and transferring it through a transmutation agreement.
Similarly, certain community property tax advantages are removed for separate property, which should be considered when changing a house or parcel's nature. Transmutation agreements are also only valid when both parties wholly understand the consequences of the contract.
It is the advantaged party's burden to prove an absence of "undue influence" and prove that the disadvantaged party is in complete agreement with the transmutation result and understands that they are changing the property's nature. For example, suppose one spouse tries to convince another spouse to turn community property into the separate property under pretenses (by insisting that it was already particular property, to begin with, for example).
In that case, the transmutation agreement can be overturned. Finally, property owned through joint ownership, such as joint tenancy with a survivorship right, typically passes by probate and automatically transfers to the surviving spouse after one spouse dies. If such property becomes separate property, owned by a single spouse, it no longer automatically bypasses probate and instead becomes part of their estate.
Careful wording is essential when creating a transmutation agreement or any other postnuptial document. Always consider consulting a professional first to ensure that your intent is adequately reflected in the document and that no simple mistakes or oversights come back to haunt you.
