Community Property

Community Property (with Right of Survivorship)

Domestic Partnership

Tenancy in Common

Joint Tenancy

Tenancy in Partnership

Title Holding Trust

Parties

Only husband and wife

Husband and wife, or registered domestic partners

Parties to a declaration of Domestic Partnership filed with the CA Secretary of State in compliance with §297 of the family code.

Any number of persons

Any number of persons

Only partners (any number)

Individuals, groups of persons, partnerships or corporations, a living trust

Division

Ownership and managerial interests are equal

Ownership and managerial interests are equal.

Equal absent a deed as tenants in common with differing interests.

Ownership can be divided into any number of interests, equal or unequal

Owner interests must be equal

Ownership interest is in relation to interest in partnership

Ownership is a personal property interest and can be divided into any number of interests

Title

Title is in the “community”.  Each interest is separate but management is unified.

Title is in the “community”.  Each interest is separate but management is unified.  Title must expressly state community property with right of survivorship.

In the names of the individual owners.

Each co-owner has a separate legal title to his or her undivided interest.

There must be unity of title and time (created in one document).

Title is in the partnership

Legal and equitable title is held by the trustee

Possession

Both co-owners have equal management is unified.

Both co-owners have equal management is unified.

Equal right of possession.

Equal rights of possession

Equal rights of possession

Equal right of possession but only for partnership purposes.

Right of possession as specified in the trust provisions

Conveyance

Real property requires written consent of other spouse, and separate interest cannot be conveyed except upon death.

Real property requires written consent of other spouse, and separate interest cannot be conveyed except upon death.

Both partners must join in a conveyance.

Each co-owner’s interest may be conveyed separately by its individual owner.

Conveyance by one co-owner without the others will terminate that individual’s joint tenancy.

Any authorized partner may convey whole partnership property for partnership purposes.

Designated parties within the trust agreement authorized the trustee to convey property.  Also a beneficiary’s interest in the trust may be transferred

Purchaser’s Status

Purchaser can acquire title from the community with written consent or joinder of both spouses.

Purchaser can acquire title from the community with written consent or joinder of both spouses.

Purchaser will become a tenant-in-common with the other property co-owners.

Purchaser will become a tenant-in-common with the other property co-owners.

Purchaser can only acquire whole title

A purchaser may obtain a beneficial interest by assignment or may obtain legal and equitable title from the trust

Death

Upon death of one spouse, 50% belongs to surviving spouse, 50% goes by will to descendant’s devisees or by succession to surviving spouse.

Upon death of one spouse, his or her interest ends and cannot be disposed of by will.  Survivor owns 100% of property.  An affidavit of death (community property with right of survivorship) establishes death of a spouse.

Decedent partner’s ½ interest passes to decedent’s estate.

On co-owner’s death, his or her interest passes by ill to that person’s devisees or heirs.  No survivorship right.

On co-owner’s death, his or her interest ends and cannot be disposed of by will.  Survivor(s) own(s) the property.  An affidavit of death of joint tenant establishes death.

On partner’s death his/her partnership interests passes to the surviving partner pending liquidation of the partnership.  Share of deceased partner then goes to his/her estate.

Successor beneficiaries may be named in the trust agreement, eliminating the need for probate

Successor’s Status

If passing by will, tenancy-in-common between devisees and survivor results.

Purchaser can only acquire whole title of community. 

Tenancy in common between devisee and survivor results.

Devisees or heirs become tenants-in-common

Last survivor owns property 100%

Heirs or devisees have rights in partnership interest but not specific property.

Defined by the trust agreement, generally the successor becomes the beneficiary and trust continues

Creditor’s Rights

Property of community is liable for contracts of either spouse which were made after marriage and prior to Jan. 1 1975.  Co-owner’s interest cannot be sold separately; whole property may be sold on execution to satisfy creditor.

Property of community is liable for contracts of either spouse which were made after marriage and prior to Jan. 1 1975.  Co-owner’s interest cannot be sold separately; whole property may be sold on execution to satisfy creditor.

Partnership Property is treated as Community and is probably liable for the debts of either partner incurred before or during the domestic partnership.

Co-owner’s interest may be sold on execution of sale to satisfy his or her creditor.  The creditor becomes a tenant-in-common.

Co-owner’s interest may be sold on execution of sale to satisfy creditor.  Joint tenancy is broken; creditor becomes tenant-in common

Partner’s interest cannot be seized or sold separately by his/her personal creditors but his/her share of profits may be obtained by a personal creditor.  Whole property may be sold on execution sale to satisfy partnership creditor.

Creditor may seek an order for execution sale of the beneficial interest or may seek an order that the trust estate be liquidated and the proceeds distributed

Presumption

The legal presumption is that property which has been acquired during the course of marriage is community property.

Husband and wife, or couples in a same sex relationship

Favored and doubtful cases, except in husband and wife case.

Must be expressly stated.  Not favored

Arise only by virtue of partnership status in property placed in partnership

A trust is expressly created by an executed trust agreement