Chapter 11

COL12010615GCA ESTATES AND PROBATE CH.11DISPOSITION OF 'QUASI-COMMUNITY 'PROPERTY 1CHAPTER 11 DISPOSITION OF 'QUASI -COMMUNITY 'PROPERTY § 1101. Disposition of Property Acquired While Domiciled Outside Guam or In Exchange Therefor . § 1103. Election of Surviving Spouse to T ake Under or Against W ill. § 1105. Election of Surviving Spouse to Take Under or Against Will, Requasi -Community Property. § 1107. Restoration to Decedent's Estate of Property in Which Surviving Spouse Had Expectancy. § 1101. Disposition of Property Acquired While Domi ciled Outside Guam or In Exchange There for. Upon the death of any married person domiciled in Guam, one -half (2) of the following property in such decedent's estate shall belong to the surviving spouse and the other one -half (2) of such property is subject to the testamen tary disposi tion of such deceden t, and, in the absence thereof, goes to the surviving spouse: (a) All personal property wherever situated, and all real property situated in Guam, hereto fore or her eafter acquired by such decedent while domiciled elsewhere which would have been the commun ity property of such decedent and the surviv ing spouse if such decedent had been

Guam, hereto fore or her eafter acquired by such decedent while domiciled elsewhere which would have been the commun ity property of such decedent and the surviv ing spouse if such decedent had been domiciled in Guam at the time of its acquisition; (b) All personal property wherever situated, and all real property situated in Guam, hereto fore or her eafter acquired in ex change for real or personal property , wher eversituated, which would have been community property of such decedent and the surviving spouse if such decedent had been domiciled in Guam at the time the property so exchanged was acquired. All such property is subject to the debts of the dece dent and to administration and disposal under the provi sions of Division 3 of this Title. SOURCE : California Probate Code, § 201.5 (as amend ed). COMMENT : The purpose of § 1101 is to provide for the disposi tion of what is general lyknown as Aquasi -communi typroper [email protected]., property acquired in a non - community property jurisdic tion which would be community property had it been acquired in Guam. For example: H and W live in Wisconsin, a non -community property state .

property acquired in a non - community property jurisdic tion which would be community property had it been acquired in Guam. For example: H and W live in Wisconsin, a non -community property state . H buy s a parcel of real property in Guam, taking it in his own name; COL12010615GCA ESTATES AND PROBATE CH.11DISPOSITION OF 'QUASI-COMMUNITY 'PROPERTY 2thus in Wisconsin, the parcel would be H's separate property. H and W then become domiciled in Guam; H then dies. Absent § 1101, the argument might be made that the Guam realty had rema ined H's separate property until he died -- which would have the effect of allow ing H to will the property away, leaving W with none of it. This result would be con traryto the basic principle of the community property system: that anything earned by H o r W during their marriage belongs to both of them equally --i.e., to the Acommu nity@of H and W --rather than to one or the other. Under § 1101, on the other hand, the property in question would be treated the same way as community property would be tre ated under Chapter 10. Subsection (b) of § 1101 has a similar effect with respect to property which was exchanged for Aquasi -communi ty@property .

ted the same way as community property would be tre ated under Chapter 10. Subsection (b) of § 1101 has a similar effect with respect to property which was exchanged for Aquasi -communi ty@property . This pre vents H, in the example above, from selling the Guam property and buying other Guam property wit h the proceeds, then willing away such exchanged property as his separate property . Again, the underlying purpose of this part of § 1101 is to support the basic principle of the community property system. Itshould be noted that both subsections of § 1101 cover personal property wherever situated, and real property in Guam. This distinction has been made in keeping with the general principle of law that the courts of a particular jurisdiction have no direct control over real property located outside that j urisdiction. § 1103. Election of Surviving Spouse to T ake Under or Against Will. Upon the death of any married person not domiciled in Guam who leaves a valid will disposing of real property in Guam which is not the community proper ty of such decedent an d the surviving spouse, the surviv ing spouse has the same right to elect to take a portion of or interest in such property

l property in Guam which is not the community proper ty of such decedent an d the surviving spouse, the surviv ing spouse has the same right to elect to take a portion of or interest in such property against the will of such decedent as though the property wer e situated in such decedent's domicile at death. As used in this Section , real property includes leasehold interests in real property . SOURCE : California Probate Code, § 201.6. COMMENT : Section 1103 is new to Guam. An identical provision was added to California law in 1957, at the same time that California added § 201.5 to it s Probate Code (equivalent to § 1101, supra.) No decisional law was reported concerning California § 201.6 as of the end of 1979; it may be discerned, howev er, that the purpose behind the statute is to clarify which jurisdiction's law is to prevail in the specific factual situation with which the statute deals. Under § 1103, the prevailing law will be that of the jurisdic tion in which the decedent was domiciled at the time of his or her death; the apparent necessity for this statute arises from the fact t hat Guam (and California) law provides for no Awidow's election @as to separate property

was domiciled at the time of his or her death; the apparent necessity for this statute arises from the fact t hat Guam (and California) law provides for no Awidow's election @as to separate property --under a community property system, no such election is necessary or appropri ate. If prior Guam law were to prevail in the factual situation with which § 1103 deals , therefore, it might be that the surviving spouse would be left with no portion of the deceased spouse's property . Again, this would run con traryto the general principles of the community property system; therefore, for this limited COL12010615GCA ESTATES AND PROBATE CH.11DISPOSITION OF 'QUASI-COMMUNITY 'PROPERTY 3purpose, the law of the decedent's domiciliary state is allowed to prevail to avoid such an unfortunate result. § 1105. Election of Surviving Spouse to Take Under or Against Will, Requasi -Community Prop erty. Whenever a decedent has made provision by a valid will for his surviving spouse and such surviving spouse also has a right under Section 1103 of this Title to take property of such decedent against the will, such surviving spouse shall be required to elect whether to take under the will or to take

spouse also has a right under Section 1103 of this Title to take property of such decedent against the will, such surviving spouse shall be required to elect whether to take under the will or to take against the will unless it appears by the will that the testator intended that such surviving spouse might take both under the will and against it. SOURCE : California Probate Code, § 201.7. COMMENT : Section 1105 is new to Guam. An identical provision was added to California law in 1957, at the same time that California added § 201.5 to its Probate Code. (equiva lent to § 1101, supra.) No decisional law was reported concerning California § 201.7 as of the end of 1979; however, its purpose and effect seem clear from its face. Unde r the California (and Guam) law concerning succes sion to community property , the surviving spouse may be put to an election if the deceased spouse leaves a will: whether to take under the will, or to take the Aforced share @ that arises under the successio n statutes. Section 1105 makes it clear that the same election may be made as to quasi -community property; this merely makes both species of property subject to equivalent treatment. § 1107.

ccessio n statutes. Section 1105 makes it clear that the same election may be made as to quasi -community property; this merely makes both species of property subject to equivalent treatment. § 1107. Restoration to Decedent's Estate of Property in Which Surviving Spouse Had Expec tancy. Whenever any married person dies domiciled in Guam who has made a transfer to a person other than his surviving spouse, without receiving in exchange a consideration of sub stantial value, of property in which such surviv ing spous e had a n expec tancy under Section 1101 of this Title at the time of such transfer, such surviving spouse may require the transferee to restore to such decedent's estate one -half (2) of such property , its value, or its proceeds, if such decedent had a subs tantial quantum of ownership or control of such property at death. If such dece - dent has provided for such surviv ing spouse by will, however, such surviving spouse cannot require such restoration unless such surviving spouse has made an irrevocable electi on to take against the will under Section 1103 of this Title rather than to take under the will.

ing spouse cannot require such restoration unless such surviving spouse has made an irrevocable electi on to take against the will under Section 1103 of this Title rather than to take under the will. All property restored to such decedent's estate under the provisions of this Section shall go to his surviving spouse pursuant to Section 1101 of this Title as though such transfer had not been made. COL12010615GCA ESTATES AND PROBATE CH.11DISPOSITION OF 'QUASI-COMMUNITY 'PROPERTY 4SOURCE : California Probate Code, § 201.8. COMMENT : Section 1107 is new to Guam. An identical provision was added to California law in 1957, at the same time that California added § 201.5 (equivalent to § 1101, supr a.) The purpose of the Section is to prevent a married person from disposing of Aquasi -community @property before death, thereby depriving the surviving spouse of such property . ----------