In Re Marriage of Benson

*1100 Opinion

Family Code section 852, subdivision (a) 1 (section 852(a)) provides that a “transmutation,” or an interspousal transaction changing the character of community or separate property (§ 850), “is not valid unless made in writing by an express declaration” approved by the adversely affected spouse. In Estate of MacDonald (1990) 51 Cal.3d 262, 264 [ 272 Cal.Rptr. 153 , 794 P.2d 911 ] (MacDonald), this court held that a writing satisfies the “express declaration” requirement only if it states on its face that a change in the character or ownership of the subject property is being made. MacDonald made clear that this construction of section 852(a) precludes the use of “extrinsic evidence” to prove that the writing effected a transmutation. (MacDonald, supra, 51 Cal.3d at p. 264 .) MacDonald explained that the Legislature, in enacting these requirements and abrogating prior case law, sought to increase certainty and honesty in marital property disputes, and to decrease the burden on the courts in resolving such matters.

In this dissolution case, Douglas Benson (Husband) claims he conveyed to Diane L. Benson (Wife) his community property interest in their home after she…

I concur. It is true, as the husband in this action, Douglas Benson, contends, that there may be circumstances in which there is a conflict between Family Code section 852, subdivision (a), 1 authorizing transmutation of property within a marriage only by means of express written declaration, and section 721, subdivision (b), imposing on spouses a fiduciary duty toward each other. Such a conflict may occur when, for example, one spouse unfairly gains a benefit from the other spouse in exchange for an orally promised transmutation that in fact has no legal effect.

This kind of unjust enrichment and breach of fiduciary duty, while suggested by the facts of the present case, are not at issue here. As the majority correctly points out, husband has settled his claim with respect to the conveyance of the house he contends was quid pro quo for the alleged oral promise to transmute his retirement accounts from community property to *1113 separate property. Therefore, he cannot validly claim before this court that he was unlawfully or inequitably disadvantaged by that conveyance. His is the narrower argument that his part performance of an agreement with his wife is an adequate substitute…

Family Code section 852, subdivision (a) [1] (section 852(a)) provides that a "transmutation," or an interspousal transaction changing the character of community or separate property ( id. at § 850), "is not valid unless made in writing by an express declaration" approved by the adversely affected spouse. In Estate of MacDonald (1990) 51 Cal.3d 262, 264 , 272 Cal.Rptr. 153 , 794 P.2d 911 ( MacDonald ), this court held that a writing satisfies the "express declaration" requirement only if it states on its face that a change in the character or ownership of the subject property is being made. MacDonald made clear that this construction of section 852(a) precludes the use of "extrinsic evidence" to prove that the writing effected a transmutation. ( MacDonald, supra, 51 Cal.3d at p. 264 , 272 Cal.Rptr. 153 , 794 P.2d 911 .) MacDonald explained that the Legislature, in enacting these requirements and abrogating prior case law, sought to increase certainty and honesty in marital property disputes, and to decrease the burden on the courts in resolving such matters.

In this dissolution case, Douglas Benson (Husband) claims he conveyed to Diane Benson (Wife) his community…