California Family Code Section 2040 imposes a number of restrictions on the transfer of property for spouses going through a divorce, also known as automatic temporary restraining orders (ATROs). These restraining orders remain in effect until the petition for dissolution of marriage is dismissed, a judgement is entered, or the court makes an order. The Code Section states:

(a) In addition to the contents required by Section 412.20 of the Code of Civil Procedure, the summons shall contain a temporary restraining order:

(1) Restraining both parties from removing the minor child or children of the parties, if any, from the state, or from applying for a new or replacement passport for the minor child or children, without the prior written consent of the other party or an order of the court.

(2) Restraining both parties from transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether community, quasi-community, or separate, without the written consent of the other party or an order of the court, except in the usual course of business or for the necessities of life, and requiring each party to notify the other party of any proposed extraordinary expenditures at least five business days before incurring those expenditures and to account to the court for all extraordinary expenditures made after service of the summons on that party.

Notwithstanding the foregoing, nothing in the restraining order shall preclude a party from using community property, quasi-community property, or the party’s own separate property to pay reasonable attorney’s fees and costs in order to retain legal counsel in the proceeding. A party who uses community property or quasi-community property to pay his or her attorney’s retainer for fees and costs under this provision shall account to the community for the use of the property. A party who uses other property that is subsequently determined to be the separate property of the other party to pay his or her attorney’s retainer for fees and costs under this provision shall account to the other party for the use of the property.

(3) Restraining both parties from cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance or other coverage, including life, health, automobile, and disability, held for the benefit of the parties and their child or children for whom support may be ordered.

(4) Restraining both parties from creating a nonprobate transfer or modifying a nonprobate transfer in a manner that affects the disposition of property subject to the transfer, without the written consent of the other party or an order of the court.

(b) Nothing in this section restrains any of the following:

(1) Creation, modification, or revocation of a will.

(2) Revocation of a nonprobate transfer, including a revocable trust, pursuant to the instrument, provided that notice of the change is filed and served on the other party before the change takes effect.

(3) Elimination of a right of survivorship to property, provided that notice of the change is filed and served on the other party before the change takes effect.

(4) Creation of an unfunded revocable or irrevocable trust.

(5) Execution and filing of a disclaimer pursuant to Part 8 (commencing with Section 260) of Division 2 of the Probate Code.

(c) In all actions filed on and after January 1, 1995, the summons shall contain the following notice:

“WARNING: California law provides that, for purposes of division of property upon dissolution of marriage or legal separation, property acquired by the parties during marriage in joint form is presumed to be community property. If either party to this action should die before the jointly held community property is divided, the language of how title is held in the deed (i.e., joint tenancy, tenants in common, or community property) will be controlling and not the community property presumption. You should consult your attorney if you want the community property presumption to be written into the recorded title to the property.”

(d) For the purposes of this section:

(1) “Nonprobate transfer” means an instrument, other than a will, that makes a transfer of property on death, including a revocable trust, pay on death account in a financial institution, Totten trust, transfer on death registration of personal property, revocable transfer on death deed, or other instrument of a type described in Section 5000 of the Probate Code.

(2) “Nonprobate transfer” does not include a provision for the transfer of property on death in an insurance policy or other coverage held for the benefit of the parties and their child or children for whom support may be ordered, to the extent that the provision is subject to paragraph (3) of subdivision (a).

(e) The restraining order included in the summons shall include descriptions of the notices required by paragraphs (2) and (3) of subdivision (b).

Prohibited Actions

Some actions are prohibited entirely during the divorce process. The prohibited actions include cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance or other coverage, including life, health, automobile, and disability, held for the benefit of the parties and their child or children for whom support may be ordered. See California Family Code Section 2040(a)(3), above.

Prohibited - Subject to Spousal Consent or Court Order

Some actions are prohibited unless the spouse consents or the court makes an order. These include transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether community, quasi-community, or separate (e.g., the making of a gift by one spouse), except in the usual course of business or for the necessities of life, and creating a nonprobate transfer or modifying a nonprobate transfer in a manner that affects the disposition of property subject to the transfer (e.g., changing beneficiary designations). See California Family Code Sections 2040(a)(2) and 2040(a)(4), above.

Allowed - Upon Notice to Spouse

Other actions are allowed so long as notice of the change is filed with the court and the spouse is provided with notice. These include the revocation of a nonprobate transfer, including a revocable trust, pursuant to the instrument and the elimination of a right of survivorship to property. See California Family Code Sections 2040(b)(2) and 2040(b)(3), above.

Allowed Without Restriction

A spouse may take the following actions without providing notice to the spouse or the court: (a) create, modify, or revoke a Will, (b) create an unfunded revocable or irrevocable trust, or (c) modify a nonprobate transfer in a way that does not affect the disposition of the property (e.g., modifying the successor Trustee provisions). See California Family Code Sections 2040(b)(1), 2040(b)(4), and 2040(a)(4), above.

Because of the restrictions involved, many couples who are going through the divorce process will often create an estate plan utilizing revocable living trusts, but wait to fund the trust until the divorce has been finalized.

The Will is one of the most fundamental estate planning documents. The Will's main function is to provide instructions on how you want your assets distributed at the time of your death.

The current trend in California is to use revocable living trusts; however, the Will is still useful for individuals who have relatively small estates that would avoid probate administration anyway. Even for those who utilize the revocable living trust, a so-called "pourover" Will is prepared to ensure assets that were not re-titled in the name of the trust during the deceased person's life get transferred to the trust after his or her death.

A Will may also be used for other purposes. For example:

1. Nominate guardian(s) to care for minor children.
2. Funeral or burial instructions.
3. Specify Powers of Appointment.

The nice part about a Will is that it is relatively low-cost to create. In fact, the State Bar of California even has a free statutory Will form that you can use. 

The concept of "quasi-community property" usually comes up in the context of spouses who acquire property while living outside of California and who later move to California. The general rule is that "quasi-community property" is property that would have been considered "community property" had they acquired it while residing in California.

This area of law can become a bit complicated to understand, but the purpose of the post is to give you a basic framework.

Divorce vs. Death (Family Code vs. Probate Code)

At the outset, it's important to note that "quasi-community property" in the context of divorce is different than in the context of death of a spouse.

In the divorce context, California Family Code Section 125 states that:

“Quasi-community property” means all real or personal property, wherever situated, acquired before or after the operative date of this code in any of the following ways:

(a) By either spouse while domiciled elsewhere which would have been community property if the spouse who acquired the property had been domiciled in this state at the time of its acquisition.

(b) In exchange for real or personal property, wherever situated, which would have been community property if the spouse who acquired the property so exchanged had been domiciled in this state at the time of its acquisition. 

In the death context, California Probate Code Section 66 provides:

“Quasi-community property” means the following property, other than community property as defined in Section 28:

(a) All personal property wherever situated, and all real property situated in this state, heretofore or hereafter acquired by a decedent while domiciled elsewhere that would have been the community property of the decedent and the surviving spouse if the decedent had been domiciled in this state at the time of its acquisition.

(b) All personal property wherever situated, and all real property situated in this state, heretofore or hereafter acquired in exchange for real or personal property, wherever situated, that would have been the community property of the decedent and the surviving spouse if the decedent had been domiciled in this state at the time the property so exchanged was acquired.

The key difference involves real estate. In the divorce context, quasi-community property includes all real estate wherever it is located. In the death context, quasi-community property real estate includes only real estate within California.

Thus to understand the quasi-community property character of a certain asset, we must look at (a) where the spouse was domiciled at the time he or she acquired the property and (b) whether the property was personal property, California real estate, or non-California real estate.

Intestate Succession: Surviving Spouse's Right

Generally, quasi-community property is distributed like community property for purposes of intestate succession. However, there are some peculiarities unique to quasi-community property that are not found with typical community property. 

Upon death, 1/2 of the deceased spouse's quasi-community property belongs to the surviving spouse, and the other half belonging to the deceased spouse. The same does not hold for the surviving spouse's quasi-community property. The surviving spouse's quasi-community property belongs completely to the surviving spouse. A deceased spouse has no ability to bequeath his or her interest in the surviving spouse's separate property that would be considered quasi-community property under California law.

Couples moving into California with substantial assets outside of California would be wise to consult an estate planning lawyer to understand and determine the impact of quasi-community property rules on their estate plan.

Estate planning for California registered domestic partners can become quite complicated. The complexity arises as a result of how these unions are treated for California law purposes and how they are treated for federal law purposes. Namely, registered domestic partners (RDPs) are generally considered spouses for purposes of California law, but are not considered spouses for purposes of federal law. 

As a result, an estate planning lawyer must carefully consider each component of the registered domestic partners' estate plan to understand the ramifications that the interplay of federal and state law have on how to transfer assets.

Some practitioners believe registered domestic partners, who for all practical purposes behave and have expectations of those who are married, might be better served by simply getting married. In some sense, registered domestic partnerships already have many of the restrictions imposed on married couples (e.g., restrictions on the transfer of community property, family allowance, probate homestead, transmutation requirements, etc.) but few of the benefits provided to married couples (e.g., unlimited marital deduction for estate tax purposes, filing of joint tax returns, etc.).

The various moving parts of the law surrounding registered domestic partnerships makes it difficult to provide generalizations that are broadly applicable. Every RDP couples' estate plan must be analyzed in the context of the assets they own and how they wish to dispose of them. For this reason, it is important for RDPs to consult an experienced estate planning lawyer.