Guam or In Exchange Therefor. 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 testamentary disposition of such decedent, and, in the absence thereof, goes to the surviving spouse: (a) All personal property wherever situated, and all real property situated in Guam, heretofore or hereafter acquired by such decedent while domiciled elsewhere which would have been the community property of such decedent and the surviving 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, heretofore or hereafter acquired in exchange for real or personal property, wherever situated, 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 decedent and to administration and disposal under the provisions of Division 3 of this Title. SOURCE: California Probate Code, § 201.5 (as amended). COMMENT: The purpose of § 1101 is to provide for the disposition of what is generally known as Aquasi-community property@ -- i.e., property acquired in a non- community property jurisdiction 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 buys a parcel of real property in Guam, taking it in his own name;
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thus 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 remained H's separate property until he died -- which would have the effect of allowing H to will the property away, leaving W with none of it. This result would be contrary to the basic principle of the community property system: that anything earned by H or W during their marriage belongs to both of them equally -- i.e., to the Acommunity@ 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 treated under Chapter 10. Subsection (b) of § 1101 has a similar effect with respect to property which was exchanged for Aquasi-community@ property. This prevents H, in the example above, from selling the Guam property and buying other Guam property with 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. It should 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 jurisdiction.