§8.04 Waiver or Transmutation

There is no right to reimbursement for separate property contributions when:

• A spouse who contributed to the acquisition of community property made a written waiver of the right to reimbursement or signed a writing that has the effect of a waiver [FC §2640(b)], or
• A spouse who contributed separate property to the acquisition of the other spouse's separate property during marriage completed a written waiver or postnuptial transmutation [FC §2640(c); for discussion of postnuptial transmutations, see the online course Characterizing Property, §§7.01 et seq.].

To constitute a waiver, there must be actual intent to relinquish the right, or conduct so inconsistent with the intent to enforce the right that it induces a reasonable belief that it has been relinquished. [Marriage of Perkal (1988) 203 CA3d 1198, 1203.] Thus, separate property is preserved unless the right to reimbursement is specifically waived. Section 2640 overturns a long line of cases that considered separate property contributions to the community to be gifts to the community.

Characterization of property as community is not inconsistent with the right of reimbursement. [Marriage of Carpenter (2002) 100 CA4th 424, 427-428.]