Transmutation By Interspousal Transfer Grant Deed

  The Court of Appeals determines that a standard interspousal transfer grant deed (ITGD) meets the requirements for a transmutation of the character of marital property under Family Code section 852.

  Section 852 provides in pertinent part: “(a) A transmutation of real or personal property is not valid unless made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected.”

  The standard ITGD expresses an intent to transfer a property interest from one spouse to another:  The constituent components of the word “interspousal” – literally between spouses – plus the words “transfer” and “grant,” plus the usual statement about the grantee (or grantees) taking the property as either community or separate property, are all clear indicators the document constitutes an express declaration of an agreement to change the marital character of the property.  This document includes all those features.

  That does not end the Court’s inquiry, however, because Family Code section 721 creates a rebuttable presumption of undue influence if a property transaction gives one spouse an unfair advantage over the other. The further inquiry for the trial court is whether the party who received the transfer obtained an unfair advantage over the other and, if so, whether that party has rebutted the presumption of undue influence. [See, In re Marriage of Burkle (2006) 139 Cal.App.4th 712, 732, citing § 721.]

  The case is In re Marriage of Wishtasb Kushesh and Farima Kushesh-Kaviani, G054936.

   Mr. Daymude consults with clients and accepts cases concerning the legal effect of purported transfers of property, including transfers between spouses. For other types of cases accepted, please scroll the Home and My Practice pages. If you are seeking a legal consultation or representation, call Michael Daymude at 818-971-9409.

Jump to top

Want to comment?