Study guide
Management, Control, and Spousal Fiduciary Duties
California Bar Exam Exam
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1 Exam Format and Core Skills
California Bar Exam Blueprint: Subjects, Components, and Recent Changes Exam Format, Scoring, and the 1390 Passing Score Essay Strategy: Issue Spotting and IRAC Core Written Skills and Timing Strategy
2 Civil Procedure
Subject Matter Jurisdiction: Federal Question, Diversity, Supplemental, Removal Personal Jurisdiction, Long-Arm, Minimum Contacts, and Service of Process Venue, Transfer, and Forum Non Conveniens The Erie Doctrine and Choice of Law Pleadings, Rule 11, Amendments, and California Demurrers / Anti-SLAPP Joinder of Claims and Parties, Impleader, Intervention, Interpleader Class Actions (Rule 23 and California) Discovery: Scope, Devices, Privilege, and Sanctions Pretrial Adjudication: Dismissals, Default, and Summary Judgment Trial, Jury, Judgment as a Matter of Law, and Post-Trial Motions Appeals, the Final Judgment Rule, and Claim/Issue Preclusion
3 Constitutional Law
Judicial Review, Justiciability, Standing, Ripeness, Mootness, and Political Questions Federal Legislative Power: Commerce, Taxing & Spending, and the Tenth and Eleventh Amendments Separation of Powers: Executive, Legislative, and Judicial Authority Federalism, Supremacy, Preemption, the Dormant Commerce Clause, and Privileges & Immunities State Action and Congressional Enforcement of the Reconstruction Amendments Procedural Due Process Substantive Due Process and Fundamental Rights Equal Protection and Levels of Scrutiny First Amendment: Speech, Press, Forums, and Association First Amendment Religion Clauses and the Takings Clause
4 Contracts
Applicable Law: Common Law vs. UCC Article 2 and Mixed Contracts Mutual Assent: Offer, Acceptance, Mailbox Rule, and UCC 2-207 Consideration, Bargained-for Exchange, and Promissory Estoppel Defenses to Formation: Capacity, Mistake, Misrepresentation, Duress, Unconscionability The Statute of Frauds Parol Evidence Rule and Contract Interpretation Conditions and Performance: Express, Constructive, and Substantial Performance Breach, Anticipatory Repudiation, and the Perfect Tender Rule Excuse of Performance: Impossibility, Impracticability, and Frustration UCC Warranties and Risk of Loss Third-Party Beneficiaries, Assignment, and Delegation Contract Remedies and UCC Buyer/Seller Remedies
5 Criminal Law and Procedure
Actus Reus, Mens Rea, Concurrence, and Causation Accomplice Liability and Parties to Crime Inchoate Crimes: Attempt, Conspiracy, and Solicitation Homicide: Murder, Manslaughter, Felony Murder, and California Degrees Other Crimes Against the Person: Assault, Battery, Kidnapping, and Sex Offenses Property and Theft Crimes: Larceny, Embezzlement, Robbery, Burglary, Arson Criminal Defenses: Insanity, Intoxication, Self-Defense, Duress, Necessity, Mistake Fourth Amendment: Searches, Seizures, Warrants, and Exceptions The Exclusionary Rule, Standing, and Fruit of the Poisonous Tree Fifth Amendment: Miranda, Self-Incrimination, and Double Jeopardy Sixth Amendment: Right to Counsel, Confrontation, Speedy Trial, and Jury Pretrial Identifications, the Eighth Amendment, and Trial Rights
6 Evidence
Relevance: Logical and Legal, Rule 403, and California Proposition 8 Policy-Based Exclusions: Subsequent Remedial Measures, Settlements, Insurance, Pleas Authentication and the Best Evidence Rule Witness Competency, Personal Knowledge, and Examination Impeachment of Witnesses Lay and Expert Opinion Testimony (Daubert and California Kelly/Sargon) Character Evidence and Other Acts (MIMIC) Habit and Methods of Proving Character Hearsay: Definition, Non-Hearsay, and Exemptions Hearsay Exceptions: Availability Immaterial (FRE 803) Hearsay Exceptions Requiring Unavailability (FRE 804) and the Confrontation Clause Privileges, Judicial Notice, and Presumptions (Federal and California)
7 Real Property
1.1 Estates in Land 1.2 Future Interests 1.3 Rule Against Perpetuities 1.4 Concurrent Ownership 1.5 Landlord-Tenant Law 1.6 Easements and Servitudes 1.7 Covenants Running with Land 1.8 Recording Acts and Title 1.9 Mortgages 1.10 Land Use Regulation Adverse Possession and Rights Incident to Ownership Land Sale Contracts, Marketable Title, and Risk of Loss Deeds, Delivery, Warranties of Title, and Fixtures
8 Torts
Intentional Torts Against the Person: Battery, Assault, False Imprisonment, IIED Intentional Torts to Property and Defenses/Privileges Negligence: Duty and the Standard of Care Negligence: Breach, Res Ipsa Loquitur, and Negligence Per Se Causation: Actual and Proximate Cause Negligence Damages and Defenses: Comparative Fault and Assumption of Risk Strict Liability: Animals and Abnormally Dangerous Activities Products Liability Private and Public Nuisance Defamation Invasion of Privacy, Misrepresentation, and Economic Torts Vicarious Liability, Joint Tortfeasors, and Immunities
9 Business Associations
Agency: Formation, Actual and Apparent Authority, and Ratification Agency: Principal/Agent Duties, Respondeat Superior, and Tort Liability General Partnerships: Formation, Rights, and Partnership Property Partnership Liability, Fiduciary Duties, Dissociation, and Dissolution Limited Partnerships, LLPs, and LLCs Corporations: Formation, Promoters, and Piercing the Corporate Veil Corporate Finance: Stock, Securities, Dividends, and Distributions Directors and Officers: Fiduciary Duties, the Business Judgment Rule, and Indemnification Shareholders, Derivative Suits, Fundamental Changes, and Federal Securities (10b-5, 16(b))
10 Community Property
General Principles, the Community Estate, and Marital Economic Community Characterization: Separate vs. Community Property and Presumptions Tracing and Commingling (Exhaustion and Direct Tracing) Transmutation and Premarital/Marital Agreements Special Assets: Businesses (Pereira/Van Camp), Goodwill, Education, Pensions, Disability Management, Control, and Spousal Fiduciary Duties Debts and Creditors' Rights Distribution at Dissolution and Death; Quasi-Community Property
11 Professional Responsibility
Regulation of the Profession, Admission, and Discipline (California Rules vs. ABA Model Rules) Competence, Diligence, Communication, and Scope of Representation Confidentiality and Its Exceptions (California vs. ABA) Conflicts of Interest: Current Clients Conflicts: Former Clients, Imputation, and Business Transactions Fees, Client Trust Accounts (IOLTA), and Safekeeping Property Duties to the Court and Third Parties: Candor, Advocacy, and Fairness Forming, Declining, and Terminating the Attorney-Client Relationship Advertising, Solicitation, and the Unauthorized Practice of Law Judicial Ethics, Reporting Misconduct, and Special Prosecutor Duties
12 Remedies
Compensatory Damages: Causation, Foreseeability, Certainty, and Mitigation Punitive, Nominal, and Liquidated Damages Restitution and Unjust Enrichment Constructive Trust and Equitable Lien Injunctions: Temporary Restraining Orders, Preliminary, and Permanent Specific Performance Reformation, Rescission, and Cancellation Equitable Defenses, Declaratory Relief, and Remedy Selection
13 Trusts
Trust Creation, Required Elements, and Types of Trusts Charitable Trusts, Cy Pres, and the Rule Against Perpetuities in Trusts Trustee Powers and Trust Administration Trustee Duties: Loyalty, Prudent Investor, and Impartiality Beneficiary Rights and Principal/Income Allocation Spendthrift, Discretionary, and Support Trusts; Creditors' Rights Modification and Termination of Trusts Breach of Trust, Remedies, and Will Substitutes (Totten, POD, Revocable Trusts)
14 Wills and Succession
Intestate Succession and California Distribution Will Execution and Formalities (Attested and Holographic; California) Testamentary Capacity, Undue Influence, Fraud, Duress, and Mistake Will Components: Integration, Incorporation, Acts of Independent Significance, and Pour-Over Revocation, Revival, and Dependent Relative Revocation Lapse, Anti-Lapse, Class Gifts, Ademption, Abatement, and Exoneration Protection of the Family: Omitted Spouse and Child, Pretermitted Heirs Will Contests, Standing, and No-Contest Clauses Probate Administration, Powers of Appointment, and Will Substitutes
15 Performance Test
The Performance Test: Task Memo, File, and Library Objective PT Products: Memos, Briefs, and Client Letters Persuasive PT Products and 90-Minute Execution
Management, Control, and Spousal Fiduciary Duties
Key Takeaways Explain This Topic AI
Each spouse has EQUAL management and control of the community personal property (FC §1100(a)) and the community real property (FC §1102), meaning either spouse acting alone may generally manage, dispose of, or encumber community property — subject to important exceptions.
BOTH spouses must JOIN to sell, convey, or encumber community REAL property (FC §1102); a unilateral conveyance of real property may be voidable by the non-consenting spouse (within one year for an encumbrance by one spouse alone, and the non-consenting spouse may set aside a gift of real property).
A spouse may not make a GIFT of community property, or dispose of it for less than fair and reasonable value, WITHOUT the WRITTEN CONSENT of the other spouse (FC §1100(b)); a non-consenting spouse can void the gift (entirely during marriage; as to the donor's one-half after death/dissolution).
A spouse who is managing a community-property BUSINESS has PRIMARY management and control (FC §1100(d)) but must give prior WRITTEN NOTICE before a sale/lease/exchange of substantially all the business's personal property.
Spouses owe each other the broad FIDUCIARY duty of FC §721 (highest good faith and fair dealing, like business partners), including duties of disclosure and accounting (FC §1100(e)); breach allows remedies under FC §1101, including a 50% (or, for malice/fraud/oppression, 100%) value award of the asset and the §2602 power to award a deliberately misappropriated asset entirely to the wronged spouse.
Last updated: June 2026
California abandoned the old 'husband as manager' regime decades ago. Today, Family Code §1100(a) gives EACH spouse EQUAL management and control of the community PERSONAL property, and Family Code §1102 gives each spouse equal management and control of community REAL property. 'Equal management and control' means that, as a default, EITHER spouse acting ALONE may buy, sell, spend, invest, or encumber community property as fully as if it were that spouse's own separate property — without the other's signature.
This is efficient (the couple need not co-sign every grocery purchase or stock trade) but it creates risk that one spouse will dissipate or misdirect community assets, which is why the Family Code layers several CONSENT exceptions on top of the equal-management default and backs them with fiduciary duties. When you see a management problem, your job is to determine whether the transaction falls within the broad equal-management default (either spouse may act alone) or within one of the specific exceptions that require the OTHER spouse's joinder or written consent.
The most important exceptions concern (1) real property, (2) gifts and below-value transfers, and (3) a community-property business.
REAL PROPERTY is the most protected category. Under Family Code §1102, BOTH spouses must JOIN in executing any instrument by which community real property is SOLD, CONVEYED, or ENCUMBERED (and a lease of more than one year). A unilateral transfer of community real property by one spouse alone is therefore defective.
The remedies are nuanced: where one spouse alone executes an instrument encumbering or conveying the property, the non-consenting spouse may bring an action to VOID the transaction — and §1102 contains a one-year limitations rule protecting certain bona fide purchasers/encumbrancers for value where the instrument was made by a spouse holding record title (the non-consenting spouse must act within ONE YEAR to void an encumbrance executed by the titled spouse). For an unauthorized GIFT of community real property, the non-consenting spouse may set it aside.
The practical exam point: a spouse cannot unilaterally mortgage or sell the family home (community real property) without the other's joinder, and a deed signed by only one spouse is vulnerable to being set aside. Distinguish community real property held in BOTH names (clearly requires joinder) from community property the acting spouse holds in his name alone of record — the latter implicates the §1102 record-title and one-year-to-void protections for third parties.
GIFTS and BELOW-VALUE transfers are sharply restricted regardless of whether the asset is real or personal. Family Code §1100(b) provides that a spouse may NOT make a GIFT of community personal property, or dispose of community personal property for LESS than FAIR AND REASONABLE VALUE, without the WRITTEN CONSENT of the other spouse. The same protective logic restricts gifts of community real property. When a spouse violates this rule — say, the husband gives a community-funded car to his girlfriend, or sells community stock to a relative for a token sum — the non-consenting spouse has powerful remedies.
DURING the marriage, the wronged spouse may void the ENTIRE gift and recover the whole asset (because the gift impaired her present one-half interest and the law does not force her to accept a partial recovery while the marriage continues). After the donor spouse's DEATH or at dissolution, the wronged spouse may recover the donor's ONE-HALF interest (she keeps her own half and reclaims the half the donor improperly gave away).
A community-property BUSINESS gets a special management rule under Family Code §1100(d): the spouse who OPERATES or manages a community-property business has the PRIMARY management and control of that business and may act alone in the ordinary course — but must give PRIOR WRITTEN NOTICE to the other spouse before SELLING, LEASING, EXCHANGING, ENCUMBERING, or otherwise disposing of ALL or SUBSTANTIALLY ALL of the business's personal property. Failure to give notice does not void an act protected by third-party reliance, but it is a breach exposing the managing spouse to liability for any resulting impairment of the other's interest.
Overarching all of this is the FIDUCIARY duty. Family Code §721 provides that spouses are subject to the general rules governing FIDUCIARY relationships that control the actions of persons having relationships of personal confidence — specifically the duties of a nonmarital business partner under the Corporations Code — and that, in transactions between themselves, neither may take unfair advantage of the other.
Family Code §1100(e) makes this concrete in the management context: each spouse must act in GOOD FAITH with respect to the other in managing community property, and the duties include the same rights and duties of nonmarital business partners, including the obligation of FULL DISCLOSURE of all material facts regarding the existence, characterization, and valuation of community assets and debts, and access to information and records on request (an ACCOUNTING duty).
Remedies for breach are set out in Family Code §1101: the wronged spouse may claim a share of community assets transferred or impaired in breach, and the court may award the wronged spouse FIFTY PERCENT (or an amount equal to fifty percent) of the value of any asset that should have been disclosed or that was transferred in breach — or, where the breach involves MALICE, FRAUD, or OPPRESSION, ONE HUNDRED PERCENT of the asset's value (§1101(h)).
Independently, at dissolution Family Code §2602 lets the court award to one spouse, as that spouse's share, the amount the OTHER spouse DELIBERATELY MISAPPROPRIATED from the community — and §2556 lets a court divide omitted or unadjudicated assets even after judgment. The headline exam rule: a spouse who hides a community asset (e.g., undisclosed lottery winnings, as in In re Marriage of Rossi) can lose the ENTIRE asset to the wronged spouse under §1101(h)/§2602.
Management Powers and Consent Requirements
- Transaction Rule Statute
- Ordinary management of community personal property Either spouse may act alone (equal management) FC §1100(a)
Sale/conveyance/encumbrance of community REAL property BOTH spouses must join; voidable if not (1-yr rule for titled-spouse encumbrance) FC §1102
Gift of community property / transfer below fair value Requires WRITTEN consent of other spouse; voidable FC §1100(b)
Community-property business Operating spouse has primary control; prior WRITTEN notice before disposing of substantially all assets FC §1100(d)
- Disclosure & accounting Full disclosure of assets/debts; good-faith management FC §721, §1100(e)
- Breach remedy 50% of asset (100% for fraud/malice/oppression); award misappropriated asset FC §1101, §2602