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Court of Appeal, Second District, Division 2, California.

Clifford B. CARLSTON, Plaintiff and Appellant, v. Althea COSS, Defendant and Respondent.

Civ. 69316.

Decided: March 30, 1984

Lawson M. Brown, Studio City, for plaintiff and appellant. William M. Fitzhugh, Santa Monica, for defendant and respondent.

Respondent Alberta Miller died on January 14, 1977, survived by her only sister Althea Coss and by her husband LeRoy Miller, whom she had married in 1939.

During her lifetime, Alberta used community property funds to establish four savings accounts, which totaled $86,000 at the time of her death.   Three of the accounts were “Totten” trust accounts, naming Alberta as trustee for Althea.   The fourth account was held by Alberta and Althea in joint tenancy, with the right of survivorship.   It is not in dispute that Alberta established the accounts as a means of providing for Althea after her death.

After Alberta's death, LeRoy brought an action against Althea to recover one-half of the assets in the four savings accounts.   Upon LeRoy's death, the action was continued by the executor of his will, Clifford Carlston (appellant).   The trial court rendered judgment in favor of Althea, confirming her title to 100 percent of the funds in the four accounts.   Appellant contends on appeal he was entitled to one-half of those funds.   For reasons set forth below, we affirm the judgment.


 Probate code section 201 provides:  “Upon the death of either husband or wife, one-half of the community property belongs to the surviving spouse;  the other half is subject to the testamentary disposition of the decedent, and in the absence thereof goes to the surviving spouse, subject to the provisions of sections 202 and 203 of this code.”   Thus either spouse may make a gift to a third person of one-half of the community funds to take effect upon his or her death.  (Odone v. Marzocchi (1949) 34 Cal.2d 431, 439, 212 P.2d 233;  Allen v. Samuels (1962) 204 Cal.App.2d 710, 716, 22 Cal.Rptr. 528.)   Such a gift may be regarded as the equivalent of a provision by will, because it is, in its nature, testamentary, and thus no spousal consent is needed therefor.  (Odone v. Marzocchi, supra, 34 Cal.2d at p. 439, 212 P.2d 233.)

 As noted earlier, one savings account was held by Alberta and Althea in joint tenancy, with the right of survivorship, while the other three represented “Totten” trusts.   The latter three accounts are the equivalent of a testamentary disposition.   A Totten trust is described as follows:  “Under a rule established in the New York case of Matter of Totten, if a depositor merely opens a bank account in his own name as trustee for another person, intending to reserve the power to withdraw funds during his lifetime, a tentative trust is created, revocable during the trustor's lifetime or by his will, and at his death presumptively an absolute trust.   Partial revocation takes place whenever the depositor withdraws money from the account, and the beneficiary is entitled only to the balance on deposit at death.   But if the beneficiary dies first, the tentative trust is terminated.  [Citations.]”  (7 Witkin, Summary of Cal. Law (8th ed. 1974) Trusts, § 17, p. 5379, emphasis in original.)   The Totten trust or tentative trust doctrine is accepted law in this state.  (Estate of Collins (1978) 84 Cal.App.3d 928, 933, 149 Cal.Rptr. 65.)   It obviates the necessity for compliance with the requisite statutory elements of executing a will.   It is an anomalous fiction evolved by the courts to enable persons to dispose of relatively small sums of money without testamentary formalities and expense.  (Id. 84 Cal.App.3d at p. 932, 149 Cal.Rptr. 65.)

 If the four accounts in this case had constituted 100 percent of the community assets, Clifford would have been entitled to void the gift as to one-half, i.e., the half belonging to him as the surviving spouse.  (Prob.Code, § 201;  Odone v. Marzocchi, supra, 34 Cal.2d 431, 438, 212 P.2d 233.)   It is not in dispute that Alberta's disposition represented less than half of the community assets.   The trial court therefore concluded correctly that Althea was entitled to all of the proceeds of the savings accounts.

Appellant's reliance on Tassi v. Tassi (1958) 160 Cal.App.2d 680, 325 P.2d 872 is misplaced.   The issue in Tassi was whether the wife was put to “an election” to take under community property laws or to take under testamentary disposition.   The decedent there during his life had created four joint bank accounts with his brother and three with his wife.   The court held the wife was not put to such election and thus not required to relinquish the accounts left to her in order to pursue her community property interest in the bank accounts left to the brother.   This singular issue of election was raised as the only defense by the brother.   The court merely ruled that the doctrine of election did not apply.

Tassi did not raise nor discuss the further and specific issue before us whether a spouse may give or make a testamentary disposition of his or her entire one-half of the total community property by the use of a joint tenancy bank account or by the use of a Totten trust.   We expressly hold that a spouse may do so.   We reject any implication to the contrary in Tassi.

Seemingly, the practical effect of Tassi was that the surviving spouse there still retained a pursuable community property interest in and possibly to the extent of one-half of the joint accounts.   Applied here, that effect would limit the spouse to testamentary disposition by use of a joint bank account with right of survivorship or by use of a Totten trust to only one-fourth of the community property.   But to so construe and extend the holding of Tassi to the facts here before us would conflict with the clear provisions of Probate Code section 201.

The judgment is affirmed.

BEACH, Associate Justice.

COMPTON, Acting P.J., and GATES, J., concur.

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