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.

Legal separation between spouses means that the spouses' financial lives are separated without ending their status as a married couple. However, legally, separated spouses are not treated in the same way as a non-legally separated married couple.

Here are some scenarios where legally separate spouses and non-legally separated spouses may be treated differently:

1. A legally separated spouse may not inherit from his or her spouse through intestate succession. In this context a "surviving spouse" does not include a legally separated spouse.
2. Certain rights afforded a spouse after the death of the other such as temporary use of a family home, establishment of a probate homestead, and family allowances are not available for legally separated spouses.

Although in some respects legally separated spouses and non-legally separated spouses are treated differently, in others, there is no effect. For example, if one spouse names his or her spouse as a beneficiary of a retirement account, legal separation does not affect the survivor even though they were legally separated at the time of death. The survivor would still inherit the retirement account.

Likewise, joint tenant assets are not affected as a result of legal separation, nor does legal separation affect a bequest in a Will from one spouse to another from whom they are legally separated.

A putative spouse is someone who you have a good faith belief that you are married to, but where the marriage is not legally valid.

Let's say for example, you go through the process of becoming married but for some reason your marriage certificate was never filed. Technically, the marriage is not legally valid, but you and your spouse thought that the marriage was valid. This is a situation where your spouse would be a putative spouse. Or, let's say for example, that you thought your prior divorce was complete (but it wasn't), and you later were legally married to someone else. Then your new marriage is not legally valid, and your new spouse is a "putative spouse".

The rights of a putative spouse can be tricky to determine. Ideally, if you find yourself in this situation, it should be dealt with before the death of either spouse. If there was a prior divorce that was not properly dissolved, it should be done so immediately. And, if your current marriage was defective because of some technicality, steps should be taken to make sure the marriage formalities are followed. Of course, this is often easier said than done, because oftentimes problems of this type never come to the forefront until after one of the spouses dies and someone from the past comes out of the woodwork.

Some court decisions have held that a "putative spouse" should be given the same rights as a legal spouse. Thus for example, he or she would be entitled to whatever a legal spouse would've been entitled to of your estate. However, other courts have taken a different approach when there was the presence of a surviving legal spouse, as well as a surviving putative spouse.

As a result, if you are in the process of getting married, be sure you get the proper documentation, including a validly filed marriage certificate, or if you're getting a divorce, make sure to obtain a final divorce decree from the court signed by the judge, so that there's no doubt in the future.

Today, same-sex marriages are legal in the US. This made uniform the tax and planning aspects for all married couples, whether same- or opposite-sex. It also brought about fairness in certain tax benefits that were previously only available for opposite-sex couples.

Registered Domestic Partnership

In contrast, Registered Domestic Partners are not considered spouses under federal law. Therefore, it's important to remember that many of the federal tax benefits afforded to married, same-sex couples are not available to Registered Domestic Partners.

In California, however, Registered Domestic Partners have the same rights and responsibilities as married couples, resulting in some very unique estate planning issues for couples who choose to be in Registered Domestic Partnerships.

Subsequent Marriages

The ease with which individuals may enter into Registered Domestic Partnerships can causes issues when they seek to later marry someone else.

Registered Domestic Partners who separate without taking any of the proper legal steps to dissolve the registered domestic partnership are not legally able to marry someone else. As a result, people who believe they are validly married to their new partner, may not actually be in a legal marriage because they failed to have a prior registered domestic partnership dissolved.