## Facts

- John W. Murphy married Royene Murphy in 1942.
- During marriage, Murphy owned separate property that produced income and also had community income.
- Murphy commingled separate-property funds and income with community funds in joint accounts and kept inadequate records to segregate or trace sources.
- The couple’s community income exceeded living expenses.
- Murphy died April 29, 1971; his will sought to place all of his separate property and all community property (including Royene’s one-half interest) into testamentary trusts.
- The will gave Royene trust benefits and a general testamentary power of appointment over the trust holding her community interest, and stated that if she elected to take her statutory rights, she would still receive will benefits as to property remaining subject to the will.
- Royene died December 14, 1971 without making a formal election and without exercising the power of appointment.
- After Royene’s death, her executrix and sole legatee filed a “declination” in Murphy’s probate proceeding asserting Royene’s statutory community property rights.
- In a Probate Code § 1080 proceeding to determine interests, Murphy’s legatees argued (i) Royene (and her estate) was bound by the will absent an affirmative election against it, and (ii) certain assets were Murphy’s separate property because sufficient separate funds existed in commingled accounts when assets were acquired.

## Issues

1. Whether the surviving spouse’s estate is bound by a decedent’s will disposing of the spouse’s community interest absent the spouse’s affirmative election, and whether a personal representative may assert statutory community rights after the spouse’s death.
2. Whether assets acquired during marriage from commingled accounts may be characterized as separate based only on proof that sufficient separate funds were available, without tracing the purchase source.

## Decision

- The court affirmed the judgment.
- The widow’s estate was not bound by the will’s attempted disposition of her community interest absent her affirmative election to accept it.
- The executrix’s post-death “declination” was effective to assert the widow’s statutory community property rights.
- The disputed assets were properly treated as community property because the legatees failed to trace acquisitions to separate funds and did not overcome the community-property presumption.

## Legal Principles

- A spouse generally cannot testamentarily dispose of the other spouse’s one-half community interest; absent a clear, affirmative election by the survivor to accept the testamentary plan, the survivor (or the survivor’s estate, when appropriate) may assert statutory community rights.
- Will language allowing the surviving spouse to claim statutory rights while still receiving will benefits as to property remaining subject to the will supports allowing assertion of community rights without forfeiture of all testamentary benefits.
- Property acquired during marriage is presumptively community; the party claiming separate character bears the burden to rebut the presumption.
- When separate and community funds are commingled, separate character must be proven by reliable tracing; showing only that enough separate funds were on deposit at the time of acquisition is insufficient.

## Conclusion

The court held that, given the will’s language and the absence of an affirmative election by the widow during life, the widow’s estate could assert her one-half community interest, and it affirmed community characterization of disputed assets because the claimants failed to trace commingled funds to separate-property purchases.


Estate of Murphy, 15 Cal. 3d 907, 544 P.2d 956 (Cal. 1976)