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Community Property • Gifts of Community Property
CPROP#014
Legal Definition
Neither spouse can make a gift of community property without the other spouse's written consent. As such, the non-gifting spouse can set the gift aside during the marriage. Upon divorce, the non-gifting spouse can take equal offsetting community property assets to recover half of the community property. Upon death, the non-gifting spouse can set the gift aside as to her half community property (the non-gifting spouse's recovery will be from either the donee or the gifting spouse's estate. The only exception is when US government savings bonds are involved.
Plain English Explanation
If one spouse gives away something they own together without the other's written okay, the other spouse can undo the gift during the marriage. If they split up, the spouse who didn't agree to the gift can take something of equal value from their shared stuff. If one spouse dies, the surviving spouse can take back half the value of the gift from the receiver or the deceased spouse's estate. The only time this doesn't apply is with U.S. government savings bonds.
Hypothetical
Hypo 1: Bob buys a fancy watch and decides to gift it to his brother, Bert, without telling Amy. Amy later discovers this and is upset as the watch was bought with money from their joint account. Result: Amy has the right to undo the gift during their marriage because Bob didn't get her written consent. She can either get the watch back from Bert or claim an equal value from their shared assets.
Hypo 2: Bob wins a car in a raffle and gifts it to his friend, George, without Amy's knowledge. Later, Bob and Amy decide to divorce.
Result: During the divorce proceedings, Amy can claim assets equal to half the value of the car from their community property since she didn't consent to the gift.
Hypo 3: Bob, without Amy's consent, donates a piece of expensive art from their home to a local museum. Bob then passes away. Result: After Bob's death, Amy can set aside the gift to recover her half of the community property. She can get the art back from the museum or receive equivalent value from Bob's estate.
Hypo 2: Bob wins a car in a raffle and gifts it to his friend, George, without Amy's knowledge. Later, Bob and Amy decide to divorce.
Result: During the divorce proceedings, Amy can claim assets equal to half the value of the car from their community property since she didn't consent to the gift.
Hypo 3: Bob, without Amy's consent, donates a piece of expensive art from their home to a local museum. Bob then passes away. Result: After Bob's death, Amy can set aside the gift to recover her half of the community property. She can get the art back from the museum or receive equivalent value from Bob's estate.
