What Is a Transmutation Agreement ?

"Transmutation" is an agreement between the spouses that works a change in the character of the property. To be valid, there must be a writing by the spouse whose interest in the property is adversely affected expressly declaring that the change in character "is made, joined in, consented to, or accepted by" that spouse. ( 852, subd. (a).) The mere fact that one spouse quitclaims his or her interest in community property to the separate property of the other spouse does not conclusively establish a transmutation. This is because when an interspousal transaction advantages one spouse, the law presumes the transaction was induced by undue influence. (In re Marriage of Haines (1995) 33 Cal.App.4th 277, 293.) Where a transmutation is evidenced by a deed, it is the burden of the advantaged spouse to overcome the presumption. (Id. at p. 296.) In Haines, the court held, "To demonstrate the advantage was not gained in violation of the confidential relation between marital partners, grantee's burden properly should have been to prove the quitclaim deed 'was freely and voluntarily made, and with a full knowledge of all the facts, and with a complete understanding of the effect of the transfer.' " (Ibid.) In In re Marriage of Rossin (2009) 172 Cal.App.4th 725, 732, the court explained that characterization of property as community or separate property "depends on three factors: (1) the time of acquisition; (2) the 'operation of various presumptions, particularly those concerning the form of title'; (3) the determination 'whether the spouses have transmuted' the property in question, thereby changing its character."