Stanford Law School - Robert Crown Law Library

Filed 8/11/05

IN THE SUPREME COURT OF CALIFORNIA

In re the Marriage of DIANE L. AND
DOUGLAS BENSON.
____________________________________)
)
DIANE L. BENSON,
S122254
Appellant,
Ct.App. 2/6 B165252
v.
Santa
Barbara
County
DOUGLAS BENSON,
Super. Ct. No. 1043139
)
Respondent.

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 (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

1
All statutory references are to the Family Code unless otherwise stated.
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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 property interest in their home after she
orally promised to waive, in writing, her community property interest in
Husband’s retirement accounts. No such writing was ever made. Despite section
852(a) and MacDonald, supra, 51 Cal.3d 262, the lower courts ruled that
Husband’s performance of his part of the bargain, as evidenced by the deed he
signed in Wife’s favor, served as an adequate substitute for Wife’s express written
statement changing the retirement accounts into Husband’s separate property.
We disagree. Section 852(a) does not operate like the general statute of
frauds (Civ. Code, § 1624, subd. (a) (Civil Code section 1624(a))), in which the
requirement of a basic writing is subject to an implied exception for “part
performance” of the contract’s terms. Even assuming Husband’s transfer of the
deed constituted part performance of Wife’s promise to transmute the retirement
accounts, section 852(a) requires such agreements to be both written and express,
and seeks to prevent transmutations under circumstances like those present here.
By insisting upon a special writing expressly changing the character of the
disputed property, MacDonald all but decided that section 852(a) is not satisfied
where no such writing exists at all. Thus, the lower courts erred in accepting
Husband’s transmutation claim and in denying Wife a community property
interest in his retirement plans. We will reverse the judgment.
FACTS
The parties married in 1983. They subsequently had two children, and
accumulated property together. Separation occurred in 2000. In 2001, Wife
petitioned for dissolution of the marriage. At trial, the parties litigated various
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issues, including the division of property. The record contains the following
evidence.
During the marriage, Husband worked full-time as a truck driver for a food
wholesale company. Through his employer, he participated in a stock ownership
plan, and contributed to a 401(k) retirement plan. Wife worked part-time as a
nurse at a hospital. She also had a retirement plan through her employer.
At the start of the marriage, Wife’s father, Dr. Robert L. Maahs, owned the
Santa Barbara house in which the couple lived. Husband and Wife contributed
some money each month towards use of the house. However, it appears these
payments did not cover the mortgage bill or reflect the fair rental value of the
property.
Wife is the beneficiary of an irrevocable trust. Her father is the trustee.
During the marriage, and apparently for his own estate planning purposes, Wife’s
father gave the couple a 100 percent ownership interest in the Santa Barbara
house. This transfer occurred incrementally, over several years. At some point
during this process, Wife’s father asked the couple to convey the house to the
trust. They agreed. Hence, in two transfers occurring in late 1996 and early 1997,
the couple signed grant deeds giving the trust a 100 percent ownership interest in
the house.
The parties disputed the circumstances surrounding the transfer of the
house to Wife’s trust. Husband offered two different versions of events in the trial
court, neither of which matched Wife’s account.
Initially, Husband maintained that he acquired a community property
interest in the house, and that he did not surrender this interest by deeding the
property to Wife’s trust. To enforce this claim, Husband successfully moved
before trial to join the trustee, Wife’s father, as a party to the dissolution
proceeding. However, while trial was underway, Husband settled all claims
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against the trust for an agreed-upon amount. The court promptly dismissed the
trustee from the case with prejudice.
Later, Husband testified that an oral agreement between the parties changed
the community character of both the house and his retirement accounts, as follows:
In 1996, when the couple signed the first deed in favor of Wife’s trust, Husband
agreed to forgo any community interest in the house and Wife agreed to forgo any
community interest in his retirement accounts. Wife said she would sign a writing
transforming Husband’s retirement accounts into his separate property. However,
no writing was ever made. Husband knew that such a document could easily have
been prepared and signed at the same time he deeded the house to Wife’s trust.
He did not press the issue because he trusted Wife, and because they had no plans
to divorce at the time. Husband admitted at trial that he failed to mention any oral
transmutation agreement or to identify the retirement accounts as separate property
during discovery and other pretrial proceedings.
Wife denied making any promise to waive or change her community
interest in Husband’s retirement accounts. She testified that such conversations
were limited to the house, and to her father’s request that it be conveyed to the
trust. Wife reportedly told Husband that they should repay her father’s generosity
by returning the house to him as trustee.
Consistent with testimony on both sides, the trial court concluded that
Husband relinquished his community interest in the house when he deeded it to
Wife’s trust. However, the court also agreed with Husband that Wife relinquished
her community interest in his retirement accounts. The court reasoned that section
852(a)’s writing requirement is subject to implied exceptions that traditionally
have been applied in other statutory contexts. Under this approach, Husband’s act
of deeding the house to the trust constituted “part performance” of the oral
transmutation agreement he described, and permitted its enforcement against
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Wife. In all other respects, the trial court’s judgment resolved property, support,
and child custody issues not relevant here.
The Court of Appeal affirmed the judgment. The appellate court adopted
and applied the reasoning of the trial court.
In seeking review, Wife claimed the lower courts erred in finding a valid
transmutation of Husband’s retirement accounts under section 852(a), and in
denying her a community property interest in those accounts. We now address
Wife’s concerns.
DISCUSSION
The characterization of property as community or separate determines its
division upon dissolution of the marriage. Each spouse owns a one-half interest in
all community property. (§ 751.) In general, community property is divided
equally in the aggregate when the marriage ends. (§ 2550; see §§ 2600-2604.)
However, separate property is not subject to a similar division, and belongs only to
the owner spouse. (§ 752.)
In determining the community or separate nature of property, the statutory
scheme starts from the premise that all property acquired during the marriage is
community property. (§ 760.) As pertinent here, this general rule, or
“presumption” (§ 802), covers both real property (§ 760) and employee retirement
plans. (§ 2610; In re Marriage of Lehman (1998) 18 Cal.4th 169, 177; In re
Marriage of Brown (1976) 15 Cal.3d 838, 841-842.) By its own terms, the
definition of community property in section 760 applies “[e]xcept as otherwise
provided by statute.” It therefore exempts property defined as separate under
other provisions. (E.g., §§ 770 [property acquired by gift or inheritance], 771
[earnings and accumulations while living separate and apart].)
Individuals may alter their property rights under these statutes. (§ 1500.)
One set of rules authorizes and regulates contracts made by prospective spouses
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that take effect upon their marriage. (§§ 1600-1617.) Critical here is the separate
scheme governing transactions between spouses that “transmute” or change the
character of property during an ongoing marriage. (§§ 850-853.)
In particular, section 850 allows contracts or other transfers transmuting the
separate property of one spouse to either the separate property of the other spouse
or the community property of both spouses. Community property also may
become separate property under this section. Consideration may, or may not, be
exchanged. (Ibid.) However, a companion statute, section 852(a), imposes certain
requirements.2 Section 852(a) states that a transmutation “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.”
Here, there is no dispute that Husband’s retirement accounts (much like the
house the couple received from Wife’s father) were originally community
property. The reason is that any right to receive retirement benefits represented
deferred compensation for work Husband performed during the marriage. (See In
re Marriage of Lehman, supra, 18 Cal.4th 169, 177; In re Marriage of Brown,

2
Section 852 reads in full as follows: “(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. [¶] (b) A transmutation of real property is not
effective as to third parties without notice thereof unless recorded. [¶] (c) This
section does not apply to a gift between the spouses of clothing, wearing apparel,
jewelry, or other tangible articles of a personal nature that is used solely or
principally by the spouse to whom the gift is made and that is not substantial in
value taking into account the circumstances of the marriage. [¶] (d) Nothing in
this section affects the law governing characterization of property in which
separate property and community property are commingled or otherwise
combined. [¶] (e) This section does not apply to or affect a transmutation of
property made before January 1, 1985, and the law that would otherwise be
applicable to that transmutation shall continue to apply.”
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supra, 15 Cal.3d 838, 841-842.) However, Husband claims the retirement
accounts were transmuted into his separate property under an agreement that, in
return, he would deed his community interest in the couple’s home to Wife’s trust.
Husband concedes the transmutation of his retirement accounts was never reduced
to writing, as contemplated by section 852(a). But he argues that any requirement
of such a writing was obviated by his performance of his side of the bargain.3
Wife insists, on the other hand, that Husband’s testimony about an
unwritten agreement between the spouses could not establish such a transmutation.
Section 852(a)’s requirement of an express written transmutation, Wife urges, is
absolute, and is not subject to an exception for “part performance.”
The language of the statute, both on its face and as judicially construed,
supports Wife’s view. (See Droeger v. Friedman, Sloan & Ross (1991) 54 Cal.3d
26, 38 [embracing plain meaning of community property statute].) Section 852(a)
states that an agreement to change the character of marital property “is not valid
unless” it (1) is “in writing,” (2) contains an “express declaration” by which the
“transmutation” is made, and (3) is “accepted” in some fashion by the “adversely

3
Husband claims here, as on appeal, that Wife “waived” her right to
complain about the alleged oral agreement to treat his retirement accounts as
separate property. Husband rests the proposed procedural bar on Wife’s failure to
exclude this evidence at trial. However, as we will make clear, Wife does not
challenge the transaction on technical, procedural, or evidentiary grounds. (See
Evid. Code, § 353, subd. (a).) Nor does she raise a statute of frauds defense of the
kind deemed forfeited by failure to timely object to evidence of a disputed oral
contract. (See Civ. Code, § 1624(a); Howard v. Adams (1940) 16 Cal.2d 253, 257;
see 1 Witkin, Summary of Cal. Law (9th ed. 1987) Contracts, § 266, p. 262.)
Wife has consistently claimed that no valid transmutation occurred under section
852(a) and MacDonald, supra, 51 Cal.3d 262, and that these authorities provide a
substantive ground for relief. Hence, we see no bar to resolving the issue under
review.

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affected” spouse. This multipronged rule is framed in the negative, as though all
intendments weigh against finding compliance in the usual case. In addition, no
exception to the requirement of an “express” written declaration appears in the
statute. Viewed as a whole, these features suggest the Legislature envisioned a
standard from which married couples could not freely depart.
In MacDonald, supra, 51 Cal.3d 262, this court identified the kind of
writing needed to transmute property by means of an “express declaration” under
section 852(a).4 As Wife suggests, MacDonald confirms that lawmakers
contemplated no exception to the special writing requirement like the one urged
here. (See Phillippe v. Shapell Industries (1987) 43 Cal.3d 1247, 1265 [declining
to create exception that would effectively nullify statutory rule].)
In MacDonald, Margery and Robert had been married several years when
they learned that Margery was terminally ill. They decided to divide their
community assets, such as stocks and real property, into separate estates that could
be inherited by the children each spouse had from a previous marriage. A short
time later, Robert received a large cash disbursement from the community pension
plan he acquired during his marriage to Margery. Consistent with the couple’s
general estate plan, the pension funds were deposited into IRA accounts opened
solely in Robert’s name at three different financial institutions. The designated
beneficiary of each account was a revocable living trust that Robert had

4
MacDonald, supra, 51 Cal.3d 262, addressed former Civil Code section
5110.730. (Added by Stats. 1984, ch. 1733, § 3, p. 6302.) After MacDonald was
decided, and as part of a comprehensive reorganization of the law, the Legislature
repealed former Civil Code section 5110.730 (Stats. 1992, ch. 162, § 3, p. 464),
and replaced it with Family Code section 852. (Stats. 1992, ch. 162, § 10, p. 492,
operative Jan. 1, 1994.) Both versions contain the same language. We will refer
solely to section 852, even when discussing its predecessor under MacDonald.

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established in his children’s favor. Both Robert and Margery signed standard
form IRA agreements. In doing so, Margery consented to the designation of
Robert’s trust as the sole beneficiary of those accounts (the consent paragraphs).
(MacDonald, supra, 51 Cal.3d 262, 264-265.)
After Margery died, the executor of her estate petitioned the court to
establish a community property interest in the IRA accounts. The trial court found
that in signing the IRA agreements, Margery intended to transmute her community
share of those funds into Robert’s separate property. Concluding that a valid
transmutation had occurred, the trial court denied the petition. The Court of
Appeal reversed on the ground the consent paragraphs did not satisfy section
852(a). This court granted Robert’s petition for review. The court affirmed the
judgment. (MacDonald, supra, 51 Cal.3d 262, 265-266, 273; see id. at p. 273
(conc. opn. of Mosk, J.); id. at p. 274 (dis. opn. of Arabian, J.).)
MacDonald held that notwithstanding evidence that Robert and Margery
intended to divide their community property into separate estates, any attempt to
change the character of the pension funds failed under section 852(a). The court
acknowledged that the consent paragraphs in the IRA agreements satisfied two of
the three statutory requirements. Specifically, they were “ ‘in writing,’ ” and were
“ ‘accepted’ ” (i.e., signed) by Margery, the adversely affected spouse.
(MacDonald, supra, 51 Cal.3d 262, 267-268.) However, the documents lacked
“ ‘an express declaration’ ” by which transmutations must be made. (Ibid.) In
defining and applying this phrase, MacDonald held that the IRA documents
needed language “expressly stating that [Margery] was effecting a change in the
character or ownership” of community property. (51 Cal.3d at p. 273, italics
added; see id. at pp. 264, 272.) Nothing indicated that she knew “the legal effect
of her signature might be to alter the character or ownership of her interest in the
pension funds.” (Id. at pp. 272-273.)
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MacDonald relied heavily upon the legislative history to construe the
critical statutory phrase. (51 Cal.3d 262, 268-269, 270 & fn. 6.) The court
summarized this history, as follows.
In 1984, the Legislature adopted section 852 as recommended by the
California Law Revision Commission (Commission). The Commission reported
that under California law at the time, spouses could easily transmute marital
property, including real estate, without adhering to any rules or formalities.
(Recommendation Relating to Marital Property Presumptions and Transmutations
(Jan. 1984) 17 Cal. Law Revision Com. Rep. (1984) pp. 213-214 (Commission
Report).) The Commission Report made clear that in such cases, transmutations
could be based on oral statements, implications from conduct, or documents not
manifesting a clear intent to transmute property. (Id. at p. 213, fn. 20, citing
Reppy, Debt Collection from Married Californians: Problems Caused by
Transmutations, Single-Spouse Management, and Invalid Marriage (1981) 18 San
Diego L.Rev. 143 [describing objectionable transmutation cases].) According to
the Commission, the “easy transmutation” rule generated extensive litigation and
unseemly tactics in dissolution cases. (Com. Rep., supra, at p. 214.) It
encouraged spouses “to transform a passing comment into an ‘agreement’ or even
to commit perjury by manufacturing an oral or implied transmutation.” (Ibid.)
MacDonald, supra, 51 Cal.3d 262, 268, continued: The Commission
drafted section 852 to achieve two basic goals. First, the statute’s new
requirements would increase certainty as to whether a transmutation had in fact
occurred. (Com. Rep., supra, at pp. 224-225.) Second, section 852 would
overrule existing case law insofar as it did not require a transmutation to be both
written and express. (Com. Rep., supra, at p. 225.)
Against this backdrop, MacDonald concluded that section 852 blocks
efforts to transmute marital property based on evidence — oral, behavioral, or
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documentary — that is easily manipulated and unreliable. (MacDonald, supra, 51
Cal.3d 262, 269.) Thus, according to MacDonald, the Legislature could not have
meant to validate any writing offered to prove a change in the character of
property. (Ibid.) Though no particular terminology is required (id. at p. 273), the
writing must reflect a transmutation on its face, and must eliminate the need to
consider other evidence in divining this intent. (Id. at p. 272.) MacDonald
observed that this construction of the statute achieves the stated aims of reducing
litigation and discouraging perjury. (Ibid.)5
Finally, MacDonald acknowledged that section 852 might prevent courts
from finding a transmutation in cases where some evidence suggests the spouses
meant to change the character of their property, but where they failed to follow the
statutory requirements. However, MacDonald attributed any incongruous results
to the manner in which lawmakers ultimately chose to balance the competing
policy concerns. MacDonald declined to second-guess the legislative decision to
sacrifice informality in transmutations in favor of protecting community property
and promoting judicial economy. (MacDonald, supra, 51 Cal.3d 262, 273.)
The foregoing principles support Wife’s view that no valid transmutation of
Husband’s retirement accounts could occur absent her express written consent
transforming them into Husband’s separate property. According to MacDonald,
supra, 51 Cal.3d 262, such a transaction necessitates not only a writing, but a
special kind of writing, i.e., one in which the adversely affected spouse expresses a
clear understanding that the document changes the character or ownership of

5 In
MacDonald, the majority rejected the dissent’s view that section 852(a)
establishes “a simple writing requirement akin to the statute of frauds — a
formality that would admit the use of collateral evidence to clarify the writer’s
meaning.” (MacDonald, supra, 51 Cal.3d 262, 277 (dis. opn. of Arabian, J.); see
discussion, post.)
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specific property. It follows from this special writing requirement that section
852(a) cannot be satisfied where there is no writing about the subject property at
all, and where a transmutation would have to be inferred from acts surrounding the
contract in dispute.
Subsequent decisions adhere closely to MacDonald, and decline to find a
valid transmutation absent express written language to that effect. (Estate of Bibb
(2001) 87 Cal.App.4th 461, 469-470 [DMV printout changed vehicle registration,
not ownership]; In re Marriage of Barneson (1999) 69 Cal.App.4th 583, 589-594
[written brokerage instructions changed possession, not ownership, of stock].)
Other authorities conclude that under MacDonald, supra, 51 Cal.3d 262, section
852(a) is not satisfied solely by one spouse’s detrimental reliance upon the other’s
oral promise to transmute property. (In re Marriage of Campbell (1999) 74
Cal.App.4th 1058, 1063-1064 (Campbell) [wife acquired no interest in husband’s
home where she spent her money remodeling property after he promised to share
title]; Cal. Community Property with Tax Analysis (Matthew Bender, 2004)
Transmutation of Property, § 2.24 [2][b], pp. 2-50 to 2-51.) A contrary view
would threaten to resurrect the “easy transmutation” rule that the Legislature
repudiated when it enacted section 852 twenty years ago. (See Estate of Nelson
(1964) 224 Cal.App.2d 138, 143 [transmutation may be “inferred from all the
circumstances,” including acts and oral statements]; Giacomazzi v. Rowe (1952)
109 Cal.App.2d 498, 503 [transmutation may occur where “one party has
performed all that he promises to perform and the other accepts all the benefits”].)
As a result, the lack of a writing expressly changing the character of Husband’s
retirement accounts seems fatal to finding a transmutation here.
Husband responds that nothing in the statute’s history or MacDonald
prevents part performance from excusing the special writing that section 852(a)
requires. He emphasizes the Law Revision Commission’s 1993 Report on the
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1994 Family Code, especially the comment to section 852, which states that “the
ordinary rules and formalities applicable to real property transfers apply also to
transmutations of real property between the spouses.” (1994 Fam. Code, 23 Cal.
Law Revision Com. Rep. (Nov. 1993) com. on § 852, p. 159, reprinted at 29C
West’s Ann. Fam. Code (2004 ed.) foll. § 852, p. 458 (Commission Comment).)
The Commission Comment also cites the statute of frauds in Civil Code section
1624. (29C West’s Ann. Fam. Code, supra, p. 458.) Husband theorizes that this
language shows the Legislature wanted section 852(a) to encompass not only the
“rules and formalities” imposed by the statute of frauds, but also traditional
exceptions to those “rules and formalities,” such as the one urged here.
Preliminarily, the general statute of frauds in Civil Code section 1624(a)
was enacted in 1872, and has been expanded over the years to cover various kinds
of contracts, most involving real property and commercial matters. The statute
requires either a written contract or “some note or memorandum” subscribed by
the party to be charged. (Ibid.) Since the statute of frauds primarily serves to
prove that a contract exists (Casa Herrera, Inc. v. Beydoun (2004) 32 Cal.4th 336,
345), the writing need only mention certain “essential” (Franklin v. Hansen (1963)
59 Cal.2d 570, 574) or “meaningful” terms. (Phillippe v. Shapell Industries,
supra, 43 Cal.3d 1247, 1259.) Ambiguities can be resolved by extrinsic evidence
(Franklin v. Hansen, supra, 59 Cal.2d at p. 574), which serves as a reliable
indicator of the parties’ intent in commercial or other arms’ length transactions.
(See Casa Herrera, Inc. v. Beydoun, supra, 32 Cal.4th at p. 345.)
However, where assertion of the statute of frauds would cause
unconscionable injury, part performance allows specific enforcement of a contract
that lacks the requisite writing. (Earhart v. William Low Co. (1979) 25 Cal.3d
503, 514.) The doctrine most commonly applies in actions involving transfers of
real property. (Code Civ. Proc. § 1972, subd. (a) [part performance available to
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enforce agreement to convey real property absent writing required under § 1971 of
same code]; Paul v. Layne & Bowler Corp. (1937) 9 Cal.2d 561, 564; Sutton v.
Warner (1993) 12 Cal.App.4th 415, 422; Trout v. Ogilvie (1919) 41 Cal.App. 167,
174.) Yet, part performance also has been used to enforce other contracts that
violate the statute of frauds in Civil Code section 1624(a). (Maddox v. Rainoldi
(1958) 163 Cal.App.2d 384, 390; see Note, Part Performance, Estoppel, and the
California Statute of Frauds (1951) 3 Stan. L.Rev. 281, 285-288.) In any event, to
constitute part performance, the relevant acts either must “unequivocally refer[ ]”
to the contract (Trout v. Ogilvie, supra, 41 Cal.App. at p. 172), or “clearly relate”
to its terms. (Sutton v. Warner, supra, 12 Cal.App.4th at p. 422, citing Paul v.
Layne & Bowler Corp., supra, 9 Cal.2d at p. 564.) Such conduct satisfies the
evidentiary function of the statute of frauds by confirming that a bargain was in
fact reached. (See Casa Herrera, Inc. v. Beydoun, supra, 32 Cal.4th 336, 345.)
Here, we see no evidence the Legislature intended to incorporate traditional
exceptions to the statute of frauds into section 852. Indeed, the Commission
Comment invoked by Husband supports the opposite proposition.
The 1993 Commission Comment distills the earlier Commission Report.
The Commission Report does not mention part performance under the statute of
frauds, or indicate that part performance can supplant the express writing dictated
by section 852(a). Rather, as discussed in MacDonald, supra, 51 Cal.3d 262, the
Commission Report criticized oral and implied transmutations, and recommended
a special writing requirement to reduce confusion and abuse. By alluding to the
“ordinary rules and formalities” in Civil Code section 1624(a), the Commission
Comment merely implies that transmutations no longer entail less formality than
transactions subject to the statute of frauds. Nor does the Commission Comment
mean that transmutations should be treated the same as transactions subject to the
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statute of frauds, or that the former is not deserving of greater formality than the
latter. Husband cites no legislative history to support his part performance claim.6
Husband next asks us to follow Hall v. Hall (1990) 222 Cal.App.3d 578
(Hall), which enforced a premarital contract that violated the applicable writing
requirement. (See § 1611 [contract between prospective spouses must be “in
writing and signed by both parties”]; Civ. Code, former § 5311 [same], added by
Stats. 1985, ch. 1315, § 3, p. 4582 and repealed by Stats. 1992, ch. 162, § 3,
p. 464.) Husband claims the policies governing premarital contracts apply equally
to postnuptial transmutations, and that the courts should treat these transactions the
same in deciding whether and how to enforce them.
In Hall, supra, 222 Cal.App.3d 578, the Court of Appeal upheld a judgment
enforcing an oral agreement entered between the decedent and his second wife
(plaintiff) before they married giving her a life estate in his home. The decedent
had prepared an amendment to his estate plan granting such an interest, but he

6
The issue arose at oral argument whether equitable estoppel may prevent
section 852(a) from invalidating an oral transmutation contract. (See Campbell,
supra, 74 Cal.App.4th 1058, 1063-1064 [spouse cannot use estoppel to avoid
statute’s express writing requirement]; cf. Earhart v. William Low Co., supra, 25
Cal.3d 503, 514 [party may be estopped to use statute of frauds as defense to
enforcement of oral contract].) Estoppel involves a reasonable and detrimental
change in reliance on a contract, even where the act does not involve performance
of the contract itself. (Monarco v. Lo Greco (1950) 35 Cal.2d 621, 623-624.)
However, we need not consider, in this case, whether there are any circumstances
that might estop a marital partner from invoking section 852(a). Here, the record,
which Husband’s counsel conceded at oral argument includes all of the pertinent
facts, cannot support an estoppel theory. As counsel acknowledged, an estoppel
theory in this case is entirely dependent on, and congruent with, his claim that,
despite section 852(a), his execution of the deed effected a transmutation of his
retirement accounts because it constituted part performance of a spousal
agreement for such transmutation. Hence, recognition of an “estoppel” in this case
would entirely circumvent our holding that “part performance” is not an exception
to the strict requirements of section 852(a).
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died before the documents could be signed. The Court of Appeal rejected
arguments by the representatives and heirs of the estate (i.e., the decedent’s sons
from his prior marriage) that the premarital agreement was unenforceable because
it lacked the writing required under section 1611 and its predecessor. The court
determined that plaintiff partially performed the contract by taking steps before the
marriage that “unequivocally refer[red]” to its terms. (222 Cal.App.3d at p. 586.)
In particular, she quit her job and retired early in exchange for the financial
security of having an interest in the decedent’s home. In reaching this conclusion,
the court characterized section 1611 as an ordinary “statute of frauds” (222
Cal.App.3d at p. 584) to which “traditional exceptions” like part performance
applied. (Id. at p. 587.)
Whether or not Hall reached a correct result under the statute there at issue,
its analysis has no application here. The statutory scheme in Hall seeks to
“enhance the enforceability” of agreements entered in contemplation of marriage.
(In re Marriage of Bonds (2000) 24 Cal.4th 1, 23 (Bonds); see § 1600 et seq.
[Uniform Premarital Agreement Act].) Despite recent changes linking the
voluntariness of premarital contracts to the availability of independent counsel
(§ 1615, subd. (c), added by Stats. 2001, ch. 286, § 2), and despite the
noncommercial nature of such contracts (Bonds, supra, 24 Cal.4th at pp. 24-26),
prospective spouses negotiate at greater arms’ length than married persons. (See
§ 721, subd. (b) (section 721(b)) [spouses share fiduciary relationship]; Bonds,
supra, 24 Cal.4th at p. 27 [persons entering premarital contracts do not share
fiduciary relationship]; Glass, Trading Up: Postnuptial Agreements, Fairness, and
a Principled New Suitor for California (2004) 92 Cal. L.Rev. 215, 242 [unique
emotional concerns can affect contracts between spouses].) Hence, contrary to
what Husband assumes, premarital contracts are not construed and enforced under
16

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the same standards as interspousal agreements. (Bonds, supra, 24 Cal.4th at p. 27;
In re Marriage of Friedman (2002) 100 Cal.App.4th 65, 72.)
This difference is manifest here. As discussed above, section 852(a) makes
a valid transmutation much more difficult to accomplish than prior law allowed.
The transaction requires a written document expressly acknowledging that it
changes the character of marital property, and that the adversely affected spouse
understands and accepts this result. As made clear in MacDonald, supra, 51
Cal.3d 262, 264, 272, “extrinsic evidence,” such as inferences drawn from oral
statements and conduct, is not a reliable substitute for the express writing that the
statute demands. Similar circumstances were not present in Hall, supra, 222
Cal.App.3d 578. Thus, we do not apply its analysis in the present case.
Finally, Husband suggests that strict enforcement of section 852(a), as
construed in MacDonald, supra, 51 Cal.3d 262, is unnecessary because the
“fiduciary relationship” requires spouses to act with “the highest good faith and
fair dealing” in their transactions with each other. (§ 721(b).)7 Husband observes
that MacDonald did not consider the effect of the quoted language on
transmutations, because that language did not appear in the statutory scheme until
after MacDonald was decided. (See Civ. Code, former § 5103, as amended by
Stats. 1991, ch. 1026, § 2, p. 4747.) Husband also suggests that to apply section
852(a)’s express writing requirement and to find no transmutation of the

7
Section 721(b) reads in pertinent part as follows: “[A] husband and wife
are subject to the general rules governing fiduciary relationships which control the
actions of persons occupying confidential relations with each other. This
confidential relationship imposes a duty of the highest good faith and fair dealing
on each spouse, and neither shall take any unfair advantage of the other. This
confidential relationship is a fiduciary relationship subject to the same rights and
duties of nonmarital business partners . . . .”
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retirement accounts would give Wife an “unfair advantage” under section 721(b).
She would retain the benefit of the deed he signed in her favor, while he would not
receive a full separate interest in his retirement accounts.
However, as the history of this case makes clear, Husband forfeited or
abandoned any attack on the deed as presumptively invalid under section 721(b).
(See Bonds, supra, 24 Cal.4th 1, 27, citing In re Marriage of Haines (1995) 33
Cal.App.4th 277, 293 [advantaged spouse bears burden of showing agreement was
not induced by undue influence].) The parties settled, and the trial court
dismissed, all claims involving Husband’s transfer of the deed to Wife’s trust. He
has not subsequently tried to set aside any benefit she obtained from that
transaction. No issue involving section 721(b) and the deed is under review.
The claim also lacks merit. Husband does not seek to undo a transmutation
that was so grossly one-sided and unfair as to be the product of undue influence
under section 721(b). (E.g., In re Marriage of Haines, supra, 33 Cal.App.4th 277,
293-294.) He instead invokes these principles to establish a transmutation that
fails to comply with the terms of section 852(a), as construed in MacDonald,
supra, 51 Cal.3d 262. However, absent a transmutation that otherwise satisfies
section 852(a), there is no basis for applying the presumption of undue influence
under section 721(b). (Campbell, supra, 74 Cal.App.4th 1058, 1065.) Moreover,
both statutes protect marital transactions from the same adverse influences. An
express written agreement prevents spouses from inadvertently transmuting
property through oral, implied, or other easy means. The same requirement also
deters false transmutation claims after the marriage ends. Husband has shown no
conflict between section 721(b) and section 852(a) affecting the character of his
retirement accounts.
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DISPOSITION
The lower courts erred in finding a valid transmutation of Husband’s
retirement accounts, and in characterizing such property as separate rather than
community in nature. The judgment of the Court of Appeal is reversed.
BAXTER, J.
WE CONCUR:

GEORGE, C.J.
KENNARD, J.
WERDEGAR, J.
CHIN, J.

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CONCURRING OPINION BY MORENO, J.

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 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 for
the express declaration of transmutation required by section 852, subdivision (a),

1
All statutory references are to the Family Code.
1

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which the majority properly rejects. We therefore have no occasion to decide
what statutory or equitable remedy would be available to make whole a spouse
who has been disadvantaged by an illusory oral promise to transmute property, or
what sanction may be employed against a spouse who has used section 852,
subdivision (a) as a means of breaching his or her fiduciary duty and gaining
unjust enrichment.
MORENO, J.
2

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re Marriage of Benson
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 114 Cal.App.4th 835
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S122254
Date Filed: August 11, 2005
__________________________________________________________________________________

Court:

Superior
County: Santa Barbara
Judge: James W. Brown

__________________________________________________________________________________

Attorneys for Appellant:

Ricks & Associates, Gary R. Ricks and Brigham J. Ricks for Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Griffith & Thornburgh, John R. Rydell II and John C. Eck for Respondent.

1

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Brigham J. Ricks
Ricks & Associates
201 E. Figueroa Street
Santa Barbara, CA 93101
(805) 884-9533

John R. Rydell II
Griffith & Thornburgh
8 E. Figueroa St., Suite 300
Santa Barbara, CA 93102
(805) 965-5131

2

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Opinion Information

Date:	Docket Number:
Thu, 08/11/2005	S122254

Disposition
Aug 11 2005	Opinion: Reversed

Dockets
Jan 28 2004	Petition for review filed   by counsel for appellant (Diane L. Benson)
Jan 28 2004	Record requested
Feb 2 2004	Received Court of Appeal record   one doghouse
Feb 11 2004	Answer to petition for review filed   By Respondent {Douglas Benson}.
Feb 19 2004	Reply to answer to petition filed   By appellant.
Mar 3 2004	Petition for Review Granted (civil case)   Votes: George, C.J., Kennard, Baxter, Chin, Werdegar and Moreno, JJ.
Mar 3 2004	Letter sent to:   Counsel re Certification of Interested Entities or Persons.
Mar 17 2004	Certification of interested entities or persons filed   By counsel for appellan {Diane Benson}.
Mar 29 2004	Opening brief on the merits filed   By counsel for appellant {Diane L. Benson}.
Apr 28 2004	Answer brief on the merits filed   By Respondent {Douglas Benson}.
May 18 2004	Reply brief filed (case fully briefed)   by appellant (Diane Benson)
May 3 2005	Case ordered on calendar   6/1/05, 9am, LA
Jun 1 2005	Cause argued and submitted
Aug 11 2005	Opinion filed: Judgment reversed   Opinion by Baxter, J. ----joined by George, C.J., Kennard, Werdegar & Chin, JJ. Concurring opinion by Moreno, J.
Sep 13 2005	Remittitur issued (civil case)
Sep 22 2005	Received:   Receipt for Remittitur from CA/6.

Briefs
Mar 29 2004	Opening brief on the merits filed
Apr 28 2004	Answer brief on the merits filed
May 18 2004	Reply brief filed (case fully briefed)

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