When does your spouse need consent to give gifts?

Generally, a person is free to give away property that he or she owns. However, in so-called "community property" states such as California, one cannot gift his or her community property without the consent of the other spouse.

Community Property

Let's first start with the definition of what "community property" is. For this, we turn to California Family Code Section 760, which states:

Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property.

A married person's salary or wages is one of the most common examples of community property. After you get married, every dollar you earn, unless you have some sort of marital agreement, is considered community property, and community property is considered jointly owned between two spouses.

Restrictions

California Family Code Section 1100(b) and 1102(a) describe restrictions around the gifting of community personal property and community real property:

1100(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. This subdivision does not apply to gifts mutually given by both spouses to third parties and to gifts given by one spouse to the other spouse.

1102(a): Except as provided in Sections 761 and 1103, either spouse has the management and control of the community real property, whether acquired prior to or on or after January 1, 1975, but both spouses, either personally or by a duly authorized agent, must join in executing any instrument by which that community real property or any interest therein is leased for a longer period than one year, or is sold, conveyed, or encumbered.

Living in a community property state such as California presents interesting challenges, as well as benefits when it comes to estate planning. As such it is important to explain the nature of the assets you own to your estate planning lawyer so that he or she may account for them appropriately.