FOR THE NORTHERN DISTRICT OF CALIFORNIA
HERBERT L. HOLM, No. 1-87-00559
v. A.P. No. 1-89-0151
Memorandum of Decision
The debtor in this Chapter 11 case is Herbert Holm. His wife of 21 years is defendant
Philomena Holm, who is not a debtor. During the Chapter 11 proceedings, an apartment house
in which Herbert an Philomena both owned an interest was sold. The issue in this adversary
proceeding is whether Philomena's share belongs to the bankruptcy estate.
The law in this area is not complicated. Section 541(a)(2) of the Bankruptcy Code provides
that all community property belongs to the bankruptcy estate. Herbert and Philomena held title
to the property as joint tenants; if it was a true joint tenancy, Philomena's share does not belong
to the estate. However, the state of record title creates only a rebuttable presumption of joint
tenancy. If there is sufficient evidence to rebut the presumption, the court may deem the
property to be community property. The issues must be decided under state law. In re Jacobs
(Bkrtcy.S.D.Ca.1985) 48 B.R. 570.
The court finds that in this case the presumption has been easily rebutted. Philomena's
declaration makes it clear that she has no idea what the difference between community property
and joint tenancy is, and that she has an interest in the proceeds of the sale because "being
married to Herb, I would naturally have my share of interest in it." The evidence clearly shows
that the interest of Herbert and Philomena is directly traceable solely to work Herbert alone
performed while they were married. The lack of understanding of the difference between joint
tenancy and community property, when coupled with a community source of acquisition,
constitutes substantial evidence of community property status regardless of joint tenancy form.
(1965) 234 Cal.App.2d 461, 471-72. See also Hansford
Cal. App.3d 364, 373; Oak Knoll Broadcasting
(1969) 275 Cal.App.2d 563, 568;
v. Cal. Pacific Title Ins. Co.
(1961) 193 Cal.App.2d 604, 607.
For the above reasons, the court finds that all of the Holms' interest, and not just Herbert's
half, is property of this bankruptcy estate notwithstanding the form in which title was held.
Counsel for plaintiff shall submit an appropriate form of judgment.
This memorandum constitutes findings and conclusions pursuant to FRCP 52(a) and
Bankruptcy Rule 7052.
Dated: February 10, 1990 _______________________