In Re Marriage of Koester

Introduction

Nineteen years ago, in In re Marriage of Lucas (1980) 27 Cal.3d 808 [ 166 Cal.Rptr. 853 , 614 P.2d 285 ], our Supreme Court ruled that a wife’s contribution from a separate property trust fund to the down payment of a house bought during a marriage was forfeited to the marital community when she made the mistake of allowing title to be taken, as real estate agents typically advise, in joint tenancy. Because the wife had no agreement that property traceable to separate property should remain separate, she lost out, at the time of divorce, on any reimbursement for her separate property contribution. (See id. at pp. 815-816.) The court reasoned that it was unfair to the Tioncontributing spouse to allow reimbursement because “[t]he act of taking title in a joint and equal ownership form is inconsistent with an intention to preserve a separate property interest.” (Id. at p. 815.) Lucas, in short, was a case in which the “title presumption” controlled the outcome.

As the high court would point out some 18 years later in In re Marriage of Walrath (1998) 17 Cal.4th 907 [ 72 Cal.Rptr.2d 856 , 952 P.2d 1124 ], the result in Lucas did not sit well with the…