IN RE: the MARRIAGE OF Joyce J. and Robert W. HILKE.

Reset A A Font size: Print

Court of Appeal, Second District, Division 6, California.

IN RE: the MARRIAGE OF Joyce J. and Robert W. HILKE. Jane MUELLER, as Administrator, etc., Respondent, v. Robert W. HILKE, Appellant.

Civ. No. B056544.

Decided: January 07, 1992

Robert O. Angle;  Henderson & Angle, Santa Barbara, for appellant. Robert A. McFarland, Santa Barbara, for respondent.

Robert Hilke appeals from a marital dissolution order specifying that a family residence, acquired during the marriage and held in joint tenancy at the time of his wife's death, was a divisible community property asset.  (Civ Code, § 4800.1.) 1  We reverse and hold that the filing for dissolution of marriage and a bifurcated judgment on marriage status only, with a reservation of jurisdiction of property issues, does not defeat a joint tenancy survivorship interest.

Robert Hilke and Joyce Hilke purchased a residence in 1969, taking title as “husband and wife, as joint tenants.”   On January 27, 1989, wife filed a petition to dissolve the 33 year, 11 month marriage.   The parties stipulated to an October 12, 1989 order which bifurcated the proceeding, terminated their marital status, and reserved jurisdiction over all other issues.

Before any of the property issues were adjudicated, wife died.   Thereafter, the administrator of wife's estate substituted into the case.   (Code Civ.Proc., § 385;  Kinsler v. Superior Court (1981) 121 Cal.App.3d 808, 812, 175 Cal.Rptr. 564.)

The matter proceeded to trial based on a stipulation “[t]here had been no change in the title to the subject real property between the date it was acquired in 1969 and the date of Mrs. Hilke's death․”  The trial court found it had “retained jurisdiction to decide all the real property issues that could have been decided” when it dissolved the marriage.   Relying on Kinsler v. Superior Court, supra, and section 4800.1, it found the residence was community property.   The parties were ordered to sell the property and divide the net sale proceeds.   Distribution of the sale proceeds was stayed pending husband's appeal.

 This case presents a troublesome aspect of family law.   Here, the common law presumption regarding form of title clashes with the statutory presumption that property acquired during the marriage is community property.   The problem is exacerbated when marital property is held in joint tenancy because “․ a community estate and a joint tenancy estate cannot exist at the same time in the same property.”  (Schindler v. Schindler (1954) 126 Cal.App.2d 597, 601, 272 P.2d 566.)

Prior to 1966, family law courts characterized property based on form of title and treated joint tenancy interests as separate property.  “Thus a residence purchased with community funds, but held by a husband and wife as joint tenants, was presumed to be separate property in which each spouse had a half interest.  [Citation.]  [¶] The presumption arising from the form of title created problems upon divorce or separation when title to the parties' residence was held in joint tenancy.”  (In re Marriage of Lucas (1980) 27 Cal.3d 808, 813, 166 Cal.Rptr. 853, 614 P.2d 285.)

In 1965 the Legislature enacted section 164 (later recodified as section 5110) to remedy the problem.   A family residence acquired during the marriage was treated as community property for dissolution purposes even if title was held in joint tenancy.   This evidentiary presumption worked well, so long as neither spouse died before property issues were adjudicated.

Section 4800.1 was enacted in 1986 to supplant section 5110 and “provide uniformly and consistently for the standard of proof in establishing the character of property acquired by spouses during marriage․”  (§ 4800.1, subd. (a)(1).)   It expands the community property presumption so that all property acquired “․ during the marriage in ‘joint form,’ including joint tenancy is community property for the purpose of property division on dissolution of marriage or legal separation.”  (1 Markey, Cal. Family Law Practice & Procedure (1991) § 5.02[2][a], p. 5–20.)

Unfortunately section 4800.1 falls short of its mark if marital property is held in joint tenancy and a spouse dies before the property issues are adjudicated.  “[O]n the death of a spouse, that same property is presumptively in fact held as joint tenancy, thus descending in toto to the surviving spouse by right of survivorship absent sufficient rebuttal;  and this is so even if a dissolution action had been pending (but not yet reduced to judgment) before the death.  [Citation.]”  (Hogoboom & King, Cal.Practice Guide, Family Law (Rutter, 1991) § 8:14.2, p. 8–5.)

In Estate of Blair (1988) 199 Cal.App.3d 161, 244 Cal.Rptr. 627, the court recognized that the interplay between joint tenancy survivorship and section 4800.1 can cause mischief.   This is because the joint tenancy right of survivorship controls the disposition of property if a spouse dies during the dissolution action.

“An untimely death results in a windfall to the surviving spouse, a result neither party presumably intends or anticipates.   This unfairness occurs in the context of a chameleon-like community property presumption which appears upon the filing of a dissolution action, disappears upon death, and potentially reappears upon intestate succession.  [Citation.]  Such a result is not only contrary to the certainty which should be associated with legal process, but contravenes the policy considerations which form the basis of family law matters.”  (Id., 199 Cal.App.3d at p. 169, 244 Cal.Rptr. 627.)

Since husband and wife took title to the residence as joint tenants, husband “․ establishe[d] a prima facie case that the property [was] in fact held in joint tenancy.”  (Schindler v. Schindler, supra, 126 Cal.App.2d at p. 601, 272 P.2d 566.)   The administrator had to show, by clear and convincing evidence, that the joint tenancy deed was not what it purported to be.   (Evid.Code, § 662;  In re Marriage of Weaver (1990) 224 Cal.App.3d 478, 486–487, 273 Cal.Rptr. 696.)   She failed to do so.   In the absence of rebutting evidence, the joint tenancy survivorship presumption prevails.  (In re Marriage of Wall (1973) 30 Cal.App.3d 1042, 1047, 106 Cal.Rptr. 690.)

In dicta, the court in Estate of Blair recommended that a spouse seeking a marital dissolution unilaterally sever the joint tenancy to preserve his or her community property interest.  (Id., 199 Cal.App.3d at pp. 168–169, 244 Cal.Rptr. 627;  see § 683.2;  4 Witkin, Summary of Cal.Law (9th ed. 1988) Real Property, § 283, pp. 481–482.)   In the instant case, wife took no steps to sever the joint tenancy.

 Alternatively, the administrator could have shown a transmutation.  “However, on or after January 1, 1985 such a transmutation could only be proven by an express written declaration ‘made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected.’  (Civ.Code, § 5110.730, subd. (a).)․  [T]his statutory change effectively imposed a special statute of frauds requirement on the transmutation of marital property [citation]․”  (In re Marriage of Weaver, supra, 224 Cal.App.3d at pp. 484–485, 273 Cal.Rptr. 696;  see also Estate of MacDonald (1990) 51 Cal.3d 262, 272 Cal.Rptr. 153, 794 P.2d 911.)

Section 5110.730 has been strictly construed to prohibit implied or unintended transmutations.   For example, evidence that a spouse executed an unrecorded testamentary instrument will not transmute property.  (§ 5110.740;  Estate of England (1991) 233 Cal.App.3d 1, 5, 284 Cal.Rptr. 361.)   Likewise, a spouse's pro forma signature consenting to the creation of an IRA account naming the children as beneficiaries is insufficient.  (Estate of MacDonald, supra, 51 Cal.3d at pp. 268–273, 272 Cal.Rptr. 153, 794 P.2d 911.)

We reject the administrator's argument that husband's verified pleading, filed prior to wife's death, implicitly waived his joint tenancy survivorship interest.  Estate of Blair, supra, indicates that pleadings and deposition testimony will not result in a de facto transmutation.  (Id., 199 Cal.App.3d at p. 168, 244 Cal.Rptr. 627.)

It is undisputed that the trial court reserved jurisdiction to decide property issues prior to wife's death.  Kinsler v. Superior Court, supra, however, does not stand for the proposition that a reservation of jurisdiction defeats a joint tenant's right of survivorship.   Wife's community property claims were not adjudicated during her lifetime.  (Cf. In re Marriage of Shayman (1973) 35 Cal.App.3d 648, 651, 111 Cal.Rptr. 11.)   Her death intervened before section 4800.1 could be applied.

 The reasoning of Blair is persuasive and controls here.   Regardless of whether community property claims are adjudicated in a family law court or probate proceeding, the same joint tenancy survivorship rules apply.   Section 4800.1 is an evidentiary presumption that has no legal effect until property issues are adjudicated.  (5 Miller, Cal.Practice, Family Law Practice (3rd ed. 1990 supp.) § 1081, p. 31.)

As indicated, this case is troubling and the result we reach is, in all probability, contrary to the wishes of the decedent.  “Our role, however, is only to decide this case.   The concerns we have expressed are more properly addressed by the Legislature which can provide that the community property presumption under section 4800.1 applies to those cases in which a spouse holding joint tenancy property dies during the pendency of the dissolution proceeding.”  (Estate of Blair, supra, 199 Cal.App.3d at pp. 169–170, 244 Cal.Rptr. 627.)

Until the Legislature amends section 4800.1, “․ we cannot allow extraneous factors to erode the functioning of joint tenancy.   The estate of joint tenancy is firmly embedded in centuries of real property law and in the California statute books.   Its crucial element is the right of survivorship․”  (Tenhet v. Boswell (1976) 18 Cal.3d 150, 160, 133 Cal.Rptr. 10, 554 P.2d 330.)

The order and judgment is reversed.   The parties shall bear their own costs on appeal.


1.   All statutory references are to the Civil Code unless otherwise indicated.  Civil Code section 4800.1 states in pertinent part:  “(b) For the purpose of division of property upon dissolution of marriage or legal separation, property acquired by the parties during marriage in joint form, including property held in tenancy in common, joint tenancy, tenancy by the entirety, or as community property is presumed to be community property.   This presumption is a presumption affecting the burden of proof and may be rebutted by either of the following:  [¶] (1) A clear statement in the deed or other documentary evidence of title by which the property is acquired that the property is separate property and not community property.  [¶] (2) Proof that the parties have made a written agreement that the property is separate property.”

YEGAN, Associate Justice.

STONE, P.J., and GILBERT, J., concur.

Copied to clipboard