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General Property - Availability and Inaccessibility
[EAS 42-201, 42-203]
Actually Available
Property, real or personal, is considered actually available and used in the eligibility determination:
| IF the client... | THEN... |
| Has the use and control or possession of the property, | Ownership shall be presumed unless the client submits clear evidence to the contrary. |
| Has a legal interest in a liquidated property and has the legal ability to obtain the property and use it for support and maintenance, | The liquidated property must be considered actually available and counted towards the property limit. |
| States that the property is currently unavailable and can provide verification of this, | The property can be excluded from the property determination while the client is obtaining evidence concerning the availability of the property. |
Owner of the Property
The owner of the property is the individual who has the legal title to, the right to, or the possession of the property. For the purposes of determining eligibility, unless there is evidence to prove otherwise, it is presumed that the person who “owns” the property has the right to possess, use, control, and dispose of the property.
Ownership may be with one individual, or it may be jointly owned.
Separate Property
Separate property is:
- Property acquired by the husband or wife prior to the marriage.
- Property separately acquired by gift or inheritance, after marriage.
- Property acquired during the marriage if purchased with funds which are the separate property of the owner, such as funds received from the sale of separate property or property received by gift or inheritance.
When one spouse is absent, the income of the absent spouse is his/her separate income in the month of receipt, and separate property if retained past the month of receipt. For purposes of this paragraph, the spouses are separated if:
- They have obtained an interlocutory or final judgment of dissolution,
- They are legally separated, or
- They are informally separated (living separate and apart from each other and consider their marital relationship to have ended).
Property Owned Jointly With Spouse
The client is presumed to have available his/her prorated share of the property. This presumption can only be overturned by:
- A FILED divorce which bars distribution of the property until the court decision.
- A court order which specifies the distribution of jointly held property other than in equal shares.
- Some other legal barrier which prevents the sale of the property; e.g., a lawsuit disputing the legal ownership of the property in question, or bankruptcy proceedings.
Property Owned Jointly With Others (Excluding Spouse)
Jointly owned property is considered available in its entirety to the CalWORKs AU, unless the AU can show that the property is inaccessible.
If the AU can show that it has access to only a portion of the property, only the value of that portion of the property is considered for CalWORKs eligibility.
The property is considered totally inaccessible to the AU if the property cannot practically be subdivided and the AU’s access to the value of the property is dependent on the agreement of a joint owner who refuses to comply.
Assertions that the property is NOT available must be established on an individual basis. Supporting documentation might include:
- Legal documentation such as a deed restricting unilateral sale or a will restricting sale unless the principals agree.
- An oral contract between the principals. Documentation must include statements from all the principals that such an oral contract exists.
Community Property
Community property, real or personal, is property acquired by the husband or wife during the marriage, unless acquired as separate property. Refer to Separate Property. This includes:
- Property purchased with community funds, which include earnings of the spouses while married and living together,
- Income derived from community property, and
- Funds received from the sale of community property.
Community property generally includes property purchased on the personal credit of either spouse. If property is purchased with funds which cannot be identified as separate property, such property is presumed to be community property. However, this presumption can be rebutted, for the entire property or a portion thereof.
Each spouse is presumed to own a one-half interest in community property, regardless of which spouse holds the property. All property held in the name of the spouse of a married person is presumed to be community property, unless evidence establishes it to be separate property.
Exception: Burial trusts and interment plots are considered the separate property of the spouse who is the beneficiary or user.
When questions of community property laws arise, clarification should be cleared through the EW Supervisor, District Office Manager or the CalWORKs Program Coordinator, in that order.
Child Living With Mother and Stepfather
When a child lives with his/her mother and stepfather, each spouse is presumed to own a one-half interest in property held by either spouse, unless this presumption is refuted by evidence which establishes it to be the separate property of one spouse.
Uniform Gift to Minors
Funds that a relative has set aside for a child may be classified as “Uniform Gift to Minors”. The child’s bank account is registered using the child’s Social Security Number. This will generally show another individual as the custodian. The relative does not pay taxes on the proceeds of these monies, so they are sheltered for the taxpayer. These are generally not trust funds, but separate bank accounts which may or may not be available to the child, dependent upon the statement of the person establishing the account. If the individual who established the account is a member of the AU, then the account is considered in the property limit. These accounts will also be labeled as “Uniform Transfer...”, “Uniform Gift...” or another similar designation. Refer to UNIFORM GIFT TO MINORS (Exempt Personal Property) and UNIFORM GIFT TO MINORS (Verifications) for more information.
Multiple Owners of Motor Vehicles
When a vehicle registration lists multiple owners, the EW must consider availability as well as legal ownership. Below are two situations.
Situation #1
The car registration lists the owners as:
- James Brown OR Kathy Brown
- James Brown Kathy Brown
- James Brown/Kathy Brown
The presumption is that both parties have equal rights to the above vehicle. However, jointly owned property is considered available in its entirety to the AU. This decision can be overturned by other supporting evidence.
Kathy Brown applies for CalWORKs. The above vehicle is reported but Kathy states that her husband, who has been gone for over a year took the car with him. She has had no contact with him and does not have access to this vehicle. The client must provide verification (such as property settlement from a divorce) or a “Sworn Statement” (GEN 853).
The vehicle is not considered in her property determination.
Situation #2
The car registration lists the owners as:
- James Brown, Kathy Brown AND Pat Smith
Pat Smith applies for CalWORKs and her name is discovered on a car registration as shown above. Pat states that her name was included for insurance purposes only and that she does not have access to the car. She provides similar statements from James and Kathy Brown. The above vehicle is not counted in her property limit.
Availability of Motor Vehicles
Availability Example #1
The AU which consists of a mother and her 13 year old child. The AU owns 2 cars. The mother drives one and her married daughter in Gilroy uses the other car. The car the mother drives is valued at $18,500. There are no encumbrances. Exclude $25,483, leaving $0 to be counted toward the property limit (the equity value is exempt). The second car is legally hers and she has the power to sell it, even though her daughter currently has possession of it. The second car which she owns outright is valued at $15,000. Exclude $25,483, leaving $0 to be counted toward the property limit (the equity value is exempt).
Note: Even though the registration is in the daughter's name, the mother is the legal owner. The value is included in the mother's property determination.
Availability Example #2
The AU has a car with a FMV of $25,300. The balanced owed on the car is $3200. The car registration has her father's name on it; however, in the interview the EW discovers that the client uses the car and makes the payments. If she needed to, she could sell the car because her father considers the car hers and would sign the pink slip. The client explains that the father's name was listed as legal owner in order to get the loan on the car. The car is considered available property. Exclude $25,483, leaving $0 to be counted toward the property limit (the equity value is exempt).
Availability Example #3
The client owns a car worth $30,000 which her estranged husband has taken and refused to return. The car is part of the property in dispute in a divorce action. This information is on the SAWS 2. The client is willing to get a statement from her attorney as evidence that the car is not available. The car can be excluded from the property determination until the letter is provided. The information in the attorney's letter must be evaluated as to availability of the car and appropriate action taken.
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