## Facts

- Diane L. Benson (wife) and Douglas Benson (husband) dissolved their marriage in Santa Barbara County.
- During the marriage, husband participated in an employer stock ownership plan and a 401(k); wife also had retirement benefits.
- The spouses lived in a home connected to wife’s father, who ultimately requested that the property be deeded into an irrevocable trust he managed.
- Husband transferred his community property interest in the home to the trust.
- Husband claimed the spouses had an oral agreement that, in exchange for the deed transfer, wife would sign a later writing waiving (transmuting) her community interest in husband’s retirement accounts.
- No such writing by wife was ever prepared or executed; wife disputed that she promised to waive her interest in the retirement accounts.
- The trial court treated husband’s conveyance as part performance of the alleged oral transmutation agreement and ruled wife had relinquished her community interest in husband’s retirement accounts despite the lack of a written express declaration.
- The Court of Appeal affirmed, concluding part performance could substitute for the statutory writing requirement.
- The California Supreme Court granted review.

## Issues

1. Whether Family Code § 852(a)’s requirement of a written “express declaration” for a transmutation permits an equitable part-performance exception.
2. Whether husband’s deed transfer of his interest in the home could validate an unwritten transmutation of wife’s community interest in husband’s retirement accounts.

## Decision

- The California Supreme Court reversed.
- Family Code § 852(a) is not subject to an implied part-performance exception.
- Because wife executed no writing containing an express declaration changing the character or ownership of husband’s retirement accounts, no valid transmutation occurred.
- Wife’s community property interest in husband’s retirement accounts remained.

## Legal Principles

- A transmutation under Family Code §§ 850–852 is invalid unless made in a writing that contains an “express declaration” by, or joined in by, the spouse whose interest is adversely affected.
- The “express declaration” must state on its face that a change in the character or ownership of the property is being made; extrinsic evidence cannot supply the missing express declaration.
- Equitable doctrines, including part performance, cannot be used to bypass § 852(a)’s formal writing requirement, even if one spouse acted in reliance on an alleged oral agreement.
- The statutory scheme aims to reduce litigation over alleged oral or implied transmutations and to increase certainty in marital property disputes.

## Conclusion

The court held that transmutations require a written instrument with an express declaration by the adversely affected spouse, and that conduct or part performance cannot substitute for the statutory writing; accordingly, the alleged waiver of wife’s community interest in husband’s retirement accounts was ineffective.


In re Marriage of Benson, 36 Cal. 4th 1096 (Cal. 2005)