Sometimes people discover legal claims they have against others, but don't live long enough to enforce them. In the context of gifts of community property made without consent, it's possible that your claim would outlive you, such that a personal representative of your estate may enforce those rights.

Going back to first principals, keep in mind that each spouse has an interest in community property, and each spouse has the right to transfer 1/2 of the community property upon his or her death.

Therefore, if your spouse made a gift of community property without your consent, then you or the personal representative of your estate (if you passed away), may attempt to void the gift.

The law only allows the non-consenting spouse (or his or her personal representative) to seek legal action to set aside the gift. In other words, the gifting party can't benefit from this rule, and is bound by the actions he or she took in making the gift. As to his or her interest, the gift is valid.

We've already discussed the possibility of having a gift of community property set aside if it was made without your consent; however, you may also be able to bring a claim against your spouse for "breach of spousal fiduciary duty." The relevant code section is California Family Code Section 1101, which states the following:

(a) A spouse has a claim against the other spouse for any breach of the fiduciary duty that results in impairment to the claimant spouse’s present undivided one-half interest in the community estate, including, but not limited to, a single transaction or a pattern or series of transactions, which transaction or transactions have caused or will cause a detrimental impact to the claimant spouse’s undivided one-half interest in the community estate.

(b) A court may order an accounting of the property and obligations of the parties to a marriage and may determine the rights of ownership in, the beneficial enjoyment of, or access to, community property, and the classification of all property of the parties to a marriage.

(c) A court may order that the name of a spouse shall be added to community property held in the name of the other spouse alone or that the title of community property held in some other title form shall be reformed to reflect its community character, except with respect to any of the following:

(1) A partnership interest held by the other spouse as a general partner.

(2) An interest in a professional corporation or professional association.

(3) An asset of an unincorporated business if the other spouse is the only spouse involved in operating and managing the business.

(4) Any other property, if the revision would adversely affect the rights of a third person.

(d) (1) Except as provided in paragraph (2), any action under subdivision (a) shall be commenced within three years of the date a petitioning spouse had actual knowledge that the transaction or event for which the remedy is being sought occurred.

(2) An action may be commenced under this section upon the death of a spouse or in conjunction with an action for legal separation, dissolution of marriage, or nullity without regard to the time limitations set forth in paragraph (1).

(3) The defense of laches may be raised in any action brought under this section.

(4) Except as to actions authorized by paragraph (2), remedies under subdivision (a) apply only to transactions or events occurring on or after July 1, 1987.

(e) In any transaction affecting community property in which the consent of both spouses is required, the court may, upon the motion of a spouse, dispense with the requirement of the other spouse’s consent if both of the following requirements are met:

(1) The proposed transaction is in the best interest of the community.

(2) Consent has been arbitrarily refused or cannot be obtained due to the physical incapacity, mental incapacity, or prolonged absence of the nonconsenting spouse.

(f) Any action may be brought under this section without filing an action for dissolution of marriage, legal separation, or nullity, or may be brought in conjunction with the action or upon the death of a spouse.

(g) Remedies for breach of the fiduciary duty by one spouse, including those set out in Sections 721 and 1100, shall include, but not be limited to, an award to the other spouse of 50 percent, or an amount equal to 50 percent, of any asset undisclosed or transferred in breach of the fiduciary duty plus attorney’s fees and court costs. The value of the asset shall be determined to be its highest value at the date of the breach of the fiduciary duty, the date of the sale or disposition of the asset, or the date of the award by the court.

(h) Remedies for the breach of the fiduciary duty by one spouse, as set forth in Sections 721 and 1100, when the breach falls within the ambit of Section 3294 of the Civil Code shall include, but not be limited to, an award to the other spouse of 100 percent, or an amount equal to 100 percent, of any asset undisclosed or transferred in breach of the fiduciary duty.

As a summary, the code section above provides a few different remedies in the event of a breach of spousal fiduciary duty.

The court could:

1. Order an accounting of the property at issue,
2. Determine ownership rights of the community property asset, or
3. Determine the classification of all property in the marriage. See Family Code Section 1101(b), above.

Moreover, if your spouse makes a gift of community property without your consent, a court could award you 50% of the asset (or the value of the 50%) plus attorneys fees and court costs.

One caveat, however, is in Section 1101(e), which states: "In any transaction affecting community property in which the consent of both spouses is required, the court may, upon the motion of a spouse, dispense with the requirement of the other spouse’s consent if both of the following requirements are met: (1) The proposed transaction is in the best interest of the community. (2) Consent has been arbitrarily refused or cannot be obtained due to the physical incapacity, mental incapacity, or prolonged absence of the nonconsenting spouse." Therefore, if the transfer of community property was in you and your spouse's best interest and your consent wasn't refused arbitrarily or if you were unable to consent due to an above-mentioned condition, then the Court may not require consent. 

Transfers of community property can be a thorny subject, and as a result, it is best if both spouses consent to the transfer.

It's not unusual for parents to make gifts to their children. Sometimes these gifts are made to custodial accounts under the California Uniform Transfers to Minors Act. Many times these gifts are made by one spouse or the other without much thought to the premise that the gifting spouse assumes the other spouse would consent (or the dollar amount isn't really worth fighting over).

While it is true that gifts made by both spouses mutually don't require consent, some might consider taking an extra precautionary step of documenting that consent when making a gift to to a minor child (or other third party for that matter) in order to prevent one spouse from claiming lack of consent to the gift.

How do you ensure you got consent?

Simple, just obtain a document which contains the other spouse's written agreement to make the gift to the third party. Having this in writing can not only make sure that you and your spouse are on the same page, but it will also ensure that the gift remains valid and not subject to later attack.

With statistics showing that disagreements about money is a leading cause of divorce, it may even even help to foster a healthier marital relationship.

There are some exceptions to the general rule that your spouse must provide consent when you make gifts of community property. 

Situations Where Spousal Consent Isn't Required

1. Both spouses are mutually making a gift of community personal property to a third party.
2. The third party pays for the community personal property at a fair and reasonable value.
3. The gift of community personal property is to the other spouse.

Void vs. Voidable Gift

What about community property gifts that your spouse made in the past without your consent?

In general, a gift that your spouse makes without your consent is considered a "voidable" (not "void") gift. That means you could technically bring a legal action to set aside or have the gift declared void, but that the gift itself is not void without any further action. If you're spouse is still alive, you could void the gift in its entirety, whereas, once your spouse passes away, you may only void the gift up to your one-half community property interest.

Sometimes, people run afoul of this rule without thinking much about it because the item of community property being given away is of nominal value or because it's not worth the effort to enforce one's community property interest in a certain item.

However, the underlying principal generally applies to all gifts of community property, so it's important to keep these rules in mind when one spouse tries to gift assets that are valuable.