My response:
He gets his money back, plus a percentage of his investment as and for "appreciation" of the marital property home.
The old law:
Pursuant to Marriage of Lucas, infra, a spouse who contributed separate property to a community property acquisition could not thereby obtain an interest in such property or a right to reimbursement . . . unless the parties had a "common understanding or agreement" to that effect. In effect, prior to Ca Fam § 2640, spouses who spent their own separate property to acquire or improve property for the community were presumed to make a gift to the community; and tracing would not overcome such "gift presumption." [Marriage of Lucas (1980) 27 Cal.3d 808, 816, 166 Cal.Rptr. 853, 858; see Marriage of Walrath (1998) 17 Cal.4th 907, 913-914, 72 Cal.Rptr.2d 856, 859 (recapping Lucas history)]
Rationale:
A separate property contribution to the acquisition of community property before 1984 in effect amounted to an unconditional gift to the community and thus conferred upon the other spouse a vested property right (i.e., a 50% CP ownership interest) under Lucas law.
The theoretical possibility the other spouse might obtain the contributing spouse's written waiver of a reimbursement right after § 2640 took effect is "too insubstantial to offset the other factors that, as in Fabian, call for protection of [the] vested property right against retroactive enforcement of [the contributing spouse's] claim to reimbursement . . . Whatever the motives of generosity or otherwise that may have prompted . . . [the SP contribution to the community] while [the parties] were married, [the contributing spouse] could hardly be expected to waive [the] newly created right to be reimbursed for [the] contribution in the event the marriage should break up. Short of extracting such magnanimity from [the contributing spouse], there was nothing [the other spouse] could do to protect [the] vested property right from a reimbursement claim." [See Marriage of Heikes, 10 Cal.4th at 1222-1224, 44 Cal.Rptr.2d at 162-163 (brackets added; internal quotes omitted)]
The new law - - no presumption it's a gift (post 1984):
Constitutional application to post-1984 acquisitions:
There is no constitutional impediment to applying Ca Fam § 2640 to post-1984 CP acquisitions. In these cases, the statute controls the SP "contributor's" reimbursement claim. [Marriage of Witt (1987) 197 Cal.App.3d 103, 107, 242 Cal.Rptr. 646, 648--§ 2640 reimbursement applied where W conveyed her SP dairy farm to herself and H as "husband and wife" (she intended it as a CP "gift," but never executed any written waiver of reimbursement right)]
More than a "presumption":
Ca Fam § 2640 does far more than create a "presumption" (under such a theory, absence of a written waiver would only establish a presumption that the SP contributor did not make a gift to the community, rebuttable by proof of the contributor's donative intent). Rather, the statute creates a property right in the contributing spouse--i.e., a "property right of reimbursement." [Marriage of Fabian (1986) 41 Cal.3d 440, 444, 224 Cal.Rptr. 333, 335; see Marriage of Walrath (1998) 17 Cal.4th 907, 919, 72 Cal.Rptr.2d 856, 863--"contributing spouse has a vested property right in his or her right to reimbursement . . ." under § 2640; Marriage of Witt (1987) 197 Cal.App.3d 103, 107-108, 242 Cal.Rptr. 646, 648-649; Marriage of Perkal (1988) 203 Cal.App.3d 1198, 1202, 250 Cal.Rptr. 296, 298]
Writing creating § 2581 CP presumption not itself enough:
But it is clear that the very writing that gives rise to the § 2581 CP presumption (e.g., grant deed converting SP to joint tenancy title) is not a sufficient written waiver of the reimbursement right. "If the same deed [that created the § 2581 CP presumption] . . . were to operate as a waiver of reimbursement rights under section [2640], the net effect would be no change whatsoever in the Lucas [gift presumption] rule." [Marriage of Kahan (1985) 174 Cal.App.3d 63, 72, 219 Cal.Rptr. 700, 706 (brackets added); Marriage of Anderson (1984) 154 Cal.App.3d 572, 580, 201 Cal.Rptr. 498, 503; Marriage of Perkal (1988) 203 Cal.App.3d 1198, 1202-1203, 250 Cal.Rptr. 296, 298 (same result where grant deed contained words "for a gift"; see below)]
Example:
H's adding the words "for a gift" on a grant deed conveying his SP house to himself and W as joint tenants was not a "writing that has the effect of a waiver." H's intended purpose was to attempt to negate payment of documentary transfer taxes and to obviate possible reassessment and concomitant rise in property taxes. He had not obtained legal advice about the effect of the transaction and there was no showing he otherwise intended to give up a reimbursement right; nor, in fact, did he have any reason to know he even had that right (the statute was enacted less than a month before the transaction). [Marriage of Perkal, supra, 203 Cal.App.3d at 1203, 250 Cal.Rptr. at 298-299]
IAAL
