Can One Spouse Fund a California CRUT Alone? Donors, Recipients, Consent, and the 10% Test

Short answer. Yes. One spouse can fund a California charitable remainder unitrust alone if the funding asset is that spouse's separate property.

Community property requires a different analysis, but not necessarily a different CRUT. Both spouses can transfer community property to one CRUT while only one spouse receives the unitrust payments. Federal law separates who contributes the property from who receives the unitrust interest. That distinction can matter substantially for a younger couple because the § 664 10% remainder test is determined by the lives or term governing the payments, not by the number of people who contributed the property.

The California problem comes first. Community property must be validly transferred. And if only one spouse is to own the resulting unitrust interest, the documents must address a second question that is easy to miss: whether that beneficial interest is intended to remain community property or become the recipient spouse's separate property.

Those are different issues. Consent validates a transfer. Transmutation changes ownership or characterization.

Jurisdiction: Federal law, with California marital-property, nonprobate-transfer, professional-responsibility, and property-tax overlays

Primary Statutes: IRC §§ 170, 664, 2033, 2036, 2055, 2056, 2522, 2523, 7520; Treas. Reg. §§ 1.170A-1(e), 1.664-3, 1.664-4, 20.2056(b)-8, 25.2523(g)-1; Cal. Fam. Code §§ 125, 297.5, 721, 760, 770, 852, 1100, 1101, 1102; Cal. Prob. Code §§ 100–102, 5020–5022, 5030–5032; Cal. Rev. & Tax. Code §§ 62(d), 63.

Key Authorities: Rev. Proc. 2005-24; Notice 2006-15; Rev. Procs. 2005-52 through 2005-55; Rev. Rul. 2008-41; Rev. Rul. 70-452; Rev. Rul. 77-374; Rev. Proc. 2016-42; Rev. Rul. 2026-13; Estate of MacDonald (1990) 51 Cal.3d 262; In re Marriage of Benson (2005) 36 Cal.4th 1096; Begian v. Sarajian (2019) 31 Cal.App.5th 506; Droeger v. Friedman, Sloan & Ross (1991) 54 Cal.3d 26; In re Brace (2020) 9 Cal.5th 903; In re Marriage of Mix (1975) 14 Cal.3d 604; In re Marriage of Moore (1980) 28 Cal.3d 366; In re Marriage of Marsden (1982) 130 Cal.App.3d 426; In re Marriage of Stephenson (1984) 162 Cal.App.3d 1057; Boggs v. Boggs (1997) 520 U.S. 833; Property Tax Rule 462.160; BOE Annotation 220.0810; Cal. Rule of Prof. Conduct 1.7.

Last Reviewed: August 2026

Category: Charitable Remainder Trusts — California Practice

By Klaus Gottlieb, Esq.

Begin with the asset, not the CRUT

A married client wants to transfer founder stock, an apartment building, or another highly appreciated asset to a CRUT. The client wants the unitrust payments for life. The spouse supports the transaction but does not need income from the trust.

The first question is not who should be named in the CRUT.

It is: Who owns the asset?

Family Code § 760 presumptively characterizes property acquired during marriage while domiciled in California as community property. Section 770 generally preserves as separate property property owned before marriage, property acquired by gift, bequest, devise, or descent, and the rents, issues, and profits of separate property.

Title matters, but it does not necessarily decide character. In re Brace (2020) 9 Cal.5th 903 confirms that California's community-property presumption can prevail over the general Evidence Code form-of-title presumption. Acquisition date, domicile, source of funds, title history, applicable statutory presumptions, and any valid transmutation all matter.

Commingling does not automatically convert separate property into community property. Separate property may remain separate if it can be adequately traced. In re Marriage of Mix (1975) 14 Cal.3d 604.

Several apportionment doctrines recur in CRT planning:

Moore/Marsden. If community funds reduce the principal of acquisition debt on one spouse's separate real property, the community may acquire a proportional interest in the property and its appreciation. In re Marriage of Moore (1980) 28 Cal.3d 366; In re Marriage of Marsden (1982) 130 Cal.App.3d 426. Payment of interest, taxes, insurance, or ordinary carrying expenses is not the same thing.

Pereira/Van Camp. A business owned separately before marriage may nevertheless acquire a community component where substantial marital labor contributes to its growth.

Hug/Nelson. Equity compensation spanning marital and separate-property periods may require apportionment according to the purpose of the grant and the services it was intended to reward. Vesting date alone does not supply a universal rule.

Quasi-community property requires separate treatment. Family Code § 125 generally reaches property acquired while domiciled elsewhere that would have been community property if acquired while domiciled in California. During an intact marriage it ordinarily remains under the ownership and management of the acquiring spouse; its special consequences arise principally at dissolution and death. It should not simply be treated as ordinary community property under §§ 1100 and 1102.

California registered domestic partners also require a federal-state distinction. California generally extends state marital-property rights to registered domestic partners under Family Code § 297.5, but federal tax law does not treat a domestic partnership that is not a marriage as a marriage. The federal marital-deduction rules discussed below therefore do not automatically follow.

What California requires when the property is community

For community personal property, Family Code § 1100(b) prohibits one spouse from making a gift of community personal property, or disposing of it for less than fair and reasonable value, without the other spouse's written consent. A CRT contribution contains a gratuitous disposition because part of the transferred value passes ultimately to charity.

If both spouses actually execute the transfer as donors, the transaction is no longer the unilateral gift that § 1100(b) is designed to police; the statute also expressly excepts gifts mutually made by both spouses to third parties. As a practical drafting matter, having both spouses execute the contribution documents as transferors is usually cleaner than trying to establish the transaction through a separate consent.

If one spouse purports to act alone, In re Marriage of Stephenson (1984) 162 Cal.App.3d 1057 illustrates the risk. During the marriage, an unauthorized gift may be avoided in its entirety. After death or dissolution, the remedy generally contracts to the nonconsenting spouse's one-half interest, subject to issues such as ratification, waiver, and estoppel.

For community real property, the rule is more direct. Family Code § 1102(a) generally requires both spouses to join in an instrument selling, conveying, or encumbering community real property.

A deed signed by only one spouse does not simply produce a clean transfer of that spouse's one-half interest. In Droeger v. Friedman, Sloan & Ross (1991) 54 Cal.3d 26, the California Supreme Court held that a timely challenge during marriage could avoid the unilateral transfer in its entirety. Section 1102(d)'s one-year limitation is narrower: it applies to specified instruments affecting property standing of record in one spouse's name alone. It should not be treated as a general one-year cure for defective community-property deeds.

These transactions also implicate the spouses' fiduciary duties. Family Code §§ 721 and 1100(e) impose duties of disclosure, good faith, and fair dealing in the management of community assets. Section 1101 supplies substantial remedies for breach. Those concerns become especially important when the CRT structure directs economic value from one spouse to the other.

Consent and transmutation answer different questions

This is the central California distinction.

Assume Husband and Wife own $2 million of appreciated stock as community property and want to contribute it to a CRUT.

They do not have to convert the stock into Husband's separate property before funding the trust. They can transfer the community property directly.

That answers the ownership of the funding asset.

It does not necessarily answer the ownership of the unitrust interest created in exchange for the transfer.

Suppose the CRUT names Husband alone as the unitrust recipient. Federal law permits that structure. But merely naming Husband as the person to whom the trustee writes the check does not necessarily establish, for California marital-property purposes, that the entire beneficial unitrust interest has become Husband's separate property.

Family Code § 852 provides that a transmutation of real or personal property is not valid unless made in writing by an express declaration made, joined in, consented to, or accepted by the spouse whose interest is adversely affected.

Estate of MacDonald (1990) 51 Cal.3d 262 requires the writing itself to state that a change in ownership or characterization is being made. Extrinsic evidence cannot supply what the document omits. In re Marriage of Benson (2005) 36 Cal.4th 1096 confirms that conduct or part performance does not repair an insufficient § 852 writing.

And Begian v. Sarajian (2019) 31 Cal.App.5th 506 demonstrates how exacting the rule can be: even a deed using words of conveyance failed where the instrument did not unambiguously identify the ownership interest being changed.

That produces an important drafting rule:

The community corpus need not be transmuted before contribution. But if the planning objective is for the sole recipient's resulting unitrust interest to be that spouse's separate property, the documents should expressly address that result under § 852.

I found no published California decision squarely deciding the marital-property character of a unitrust interest created when spouses jointly contribute community property to a CRUT but designate only one spouse as recipient. The safer course is therefore not to assume the answer.

The trust documents should say what the parties intend and satisfy § 852 if a change from community to separate ownership is intended.

Federal law separates donors from recipients

The federal side is considerably clearer.

Section 664(d)(2)(A) permits the unitrust amount to be paid to one or more qualifying persons for a term not exceeding 20 years or for the life or lives of the individual recipients specified by the trust.

Nothing in § 664 requires every contributor to be a recipient.

The IRS's own forms make the distinction explicit. Rev. Proc. 2005-52 supplies a sample inter vivos CRUT for one measuring life, yet its annotations state that the donor may be an individual or a husband and wife. The Service therefore expressly contemplates two spouses as donors to a CRUT whose payment period is measured by only one life.

That distinction matters:

• Donor status asks who transferred property to the trust.

• Recipient status asks who is entitled to the unitrust payments.

• Measuring life asks whose life determines how long those payments continue.

Those questions can have different answers.

For community property, both spouses may be donors while only Husband is the unitrust recipient and only Husband's life measures the trust.

The gift-tax result follows the property rights

Federal gift-tax treatment then follows the ownership actually transferred.

The general rule for a gift of community property is that each spouse is treated as making one-half of the gift.

Assume again that Husband and Wife validly contribute $2 million of community property and Husband is the sole unitrust recipient.

As to Husband's contributed half, Husband has retained the unitrust interest attributable to his property and transferred the charitable remainder.

As to Wife's contributed half, the intended federal structure is different: Wife transfers a unitrust interest to Husband and the remainder to charity.

Section 2523(g) supplies a special marital-deduction rule for precisely this type of CRT. If the donor's spouse is the only noncharitable beneficiary other than the donor, § 2523(b)'s terminable-interest rule does not apply. The donee spouse's unitrust interest qualifies for the marital deduction, while the charitable remainder qualifies under § 2522. Treas. Reg. § 25.2523(g)-1 confirms the result.

But the analysis depends on what Wife actually transferred under California law. If the parties intend Husband to own the entire unitrust interest separately, the California documentation should support that conclusion rather than leave it implicit.

A third noncharitable beneficiary changes the analysis

Section 2523(g) works only when the donor and the donor's spouse are the only noncharitable beneficiaries.

Add a child or another person as a successor noncharitable recipient and § 2523(g) no longer controls. The spousal interest must then be tested under the ordinary marital-deduction rules, including § 2523(f) where applicable. A standard CRUT should not simply be assumed to satisfy those rules.

A noncitizen spouse changes it again

Section 2523(i) generally denies the unlimited gift-tax marital deduction when the donee spouse is not a U.S. citizen. Lawful permanent residence does not substitute for citizenship.

The special annual exclusion for gifts to a noncitizen spouse is $194,000 for 2026, assuming its statutory requirements are met. Amounts above the exclusion are taxable gifts that generally consume the donor's available basic exclusion before producing current gift tax.

The citizenship issue should therefore be confirmed before—not after—the CRUT is drafted.

Why one recipient can matter to the 10% test

Section 664(d)(2)(D) requires the actuarial value of the charitable remainder at creation to equal at least 10% of the initial fair market value of the property contributed.

If both young spouses are lifetime recipients and the trust continues until the survivor dies, the charity may have to wait for two lives. That depresses the actuarial value of the remainder.

If both spouses remain donors but only one spouse is the lifetime recipient, only that recipient's life defines the payment period. The nonrecipient donor does not become a second measuring life simply because that spouse contributed property.

For a sufficiently young couple, that difference can determine whether a lifetime CRUT passes or fails the 10% test.

That is the legitimate planning value of separating donor status from recipient status.

The § 7520 rate still matters

One common shortcut should be avoided.

A 5% CRUT does not simply leave 95% of an actuarial fund behind each year for purposes of the deduction calculation, and the § 7520 rate does not disappear merely because payments are annual and made at year end.

Treas. Reg. § 1.664-4 requires use of an adjusted payout rate. The adjustment reflects the § 7520 rate and the interval between the valuation date and the unitrust payment. The applicable remainder is then obtained from the prescribed term or mortality tables.

For example, the August 2026 § 7520 rate is 5.2%. Rev. Rul. 2026-13 confirms that rate. The current month's rate is tracked at the IRS § 7520 rate page.

For a 5% CRUT valued annually with the payment made 12 months after the valuation date, Table F at 5.2% supplies an adjustment factor of approximately .950570. The adjusted payout rate is therefore approximately 4.75285%. A 20-year term produces a charitable remainder factor of approximately 37.8%, comfortably above the 10% minimum.

A lifetime CRUT is different. Mortality enters the calculation through the applicable Table U factors. A joint-and-survivor trust must be modeled on both lives; a one-life trust on the recipient's life alone.

The practical rule is simple:

Run the actual ages, payout frequency, payout timing, and applicable § 7520 rate. Do not approximate a lifetime CRUT by compounding 95%.

And do not import CRAT rules into the analysis. CRATs have different valuation mechanics and historically have been subject to the probability-of-exhaustion doctrine of Rev. Rul. 70-452 and Rev. Rul. 77-374, subject to the qualified-contingency solution in Rev. Proc. 2016-42. Those rules do not govern CRUTs.

What the one-life structure gives up

The actuarial advantage is purchased with a real economic concession.

If Husband is the sole lifetime recipient and Husband dies first, the CRUT ordinarily terminates and the assets pass to charity. Wife receives no successor unitrust payments merely because she contributed half of the original property.

That trade should be explained as an economic decision, not buried inside a tax-qualification discussion.

Before choosing the one-life structure, compare at least:

1. a lifetime CRUT for Husband alone;

2. a joint-and-survivor lifetime CRUT for both spouses, if it passes the 10% test; and

3. a term-of-years CRUT, up to 20 years, if preserving payments to both spouses for a defined period better matches the couple's objectives.

A 20-year term can eliminate the mortality problem for the 10% test, but it should not be sold as falling within the divorce safe harbor of Rev. Rul. 2008-41. The ruling's published facts concern concurrent lifetime recipients, not a fixed-term CRUT.

Be precise about the nonrecipient spouse's rights

A one-life design works because the nonrecipient spouse is not entitled to a noncharitable payment interest whose duration extends the trust.

That does not mean the spouse must literally disappear from every provision of the instrument.

A charitable designation power, trustee power, administrative consent right, or other power does not automatically turn that spouse into a second measuring life. Each such power must instead be tested under § 664, the grantor-trust rules, and the prohibited transaction provisions on its own terms.

The clean rule is narrower:

If the design depends on one measuring life, do not give the other spouse a noncharitable beneficial payment interest unless that interest has been expressly modeled.

Rev. Proc. 2005-52 also notes that the donor or donor's spouse is not treated as owner of the CRUT under the grantor-trust rules merely because that person receives the unitrust amount. That is an annotation explaining the tax effect of recipient status; it is not an operative clause that must be inserted into every trust. Trustee powers, retained powers, and other subpart E provisions still require separate review.

Does the California spouse's avoidance right threaten § 664 qualification?

Probably not under current published guidance, but the point should not be overstated in either direction.

Sections 664(d)(1)(B) and (d)(2)(B) prohibit payments from a CRT other than the permitted annuity or unitrust amount to a noncharitable person.

Rev. Proc. 2005-24 addressed statutory elective-share regimes under which a surviving spouse could invade CRT corpus. It required a waiver procedure because such a right could cause property to leave the CRT outside the permitted payment structure.

But the revenue procedure itself distinguishes community-property jurisdictions. Section 2.05 observes that elective-share regimes generally are unnecessary where the spouse already owns a vested share of marital property. It also recognizes written consent or joinder as relevant where those acts exclude trust assets from an elective-share base.

Notice 2006-15 then substantially softened the Service's position. Until further guidance is issued, the Service disregards an elective-share right without a waiver if the surviving spouse does not exercise it.

None of that squarely decides the California issue.

Family Code §§ 1100 and 1102 concern ownership and the validity or avoidability of lifetime transfers, not an elective share arising at death. I found no published case, revenue ruling, revenue procedure, or regulation holding that a California spouse's ability to avoid an unauthorized community-property transfer causes a CRUT to fail § 664(d)(2)(B).

Accordingly:

A separate federal "§ 664 waiver" should not be described as a qualification requirement.

The supported proposition is simpler. California law may make an improperly executed contribution avoidable. That alone is sufficient reason to obtain the required consent or joinder and to document the spouses' property rights correctly.

Treas. Reg. § 1.170A-1(e) creates a parallel theoretical issue where a charitable transfer is subject to a condition that could defeat it. But I found no published authority applying that regulation to an avoidable California community-property transfer. It is an unresolved issue, not a basis for stating categorically that the income-tax deduction fails.

Death: do not collapse community and quasi-community property

For true community property, Probate Code § 100 recognizes the survivor's existing one-half interest and the decedent's dispositive power over the decedent's half. Unauthorized lifetime gifts are principally governed by California's community-property rules, including Stephenson.

Quasi-community property is different.

Probate Code § 102 provides a restoration remedy for specified lifetime transfers of quasi-community property made without substantial consideration and without the surviving spouse's written consent or joinder where the decedent retained the statutorily specified possession, enjoyment, or right to income.

The statute should be applied to the actual CRUT terms rather than summarized by saying a CRT always satisfies it. Whether a retained unitrust interest meets § 102's retained-benefit requirement depends on the transaction.

The first-death federal analysis likewise depends on the California ownership that actually survived the funding transaction. If the recipient spouse validly owns the unitrust interest as separate property, the nonrecipient spouse does not retain an estate-tax interest in it merely because that spouse supplied part of the original corpus. If the unitrust interest remains community property or the nonrecipient spouse retained another property right or enjoyment, §§ 2033 and 2036 must be analyzed accordingly.

Again, the state-law characterization comes first.

Divorce: Rev. Rul. 2008-41 is powerful but narrow

Rev. Rul. 2008-41 supplies unusually useful published guidance for dividing an existing CRT.

Its divorce situation involved two U.S.-citizen spouses who were concurrent lifetime recipients. Each initially had an equal share of the unitrust or annuity amount plus survivorship rights. Incident to divorce, the CRT was divided pro rata into two separate trusts. Each former spouse became the sole recipient of that spouse's separate trust and surrendered the prior survivorship interest.

The Service ruled that, on those facts, the division:

• did not disqualify the CRTs under § 664;

• was not a taxable sale or exchange;

• preserved basis under § 1015 and holding period under § 1223;

• did not produce self-dealing under § 4941; and

• did not produce a taxable expenditure under § 4945.

The ruling does not cover every married-couple CRT.

It does not expressly address a CRUT paying one spouse alone. It does not expressly address a fixed 20-year CRUT. And it does not expressly address the common consecutive structure paying one spouse for life and then the survivor.

Private letter rulings have addressed additional divorce configurations, but § 6110(k)(3) prevents reliance on a PLR as precedent.

The planning implication is therefore modest but important:

Concurrent lifetime interests provide the cleanest published divorce path. A sole-recipient structure is not defective, but its divorce consequences require separate analysis.

California property tax

A transfer of California real property to a CRT does not necessarily trigger reassessment.

BOE Annotation 220.0810 states that a transfer to a charitable remainder trust is not a change in ownership where the trustor or the trustor's spouse is the present income beneficiary because the charitable remainder is a future rather than a present beneficial interest. Revenue and Taxation Code §§ 62(d) and 63 and Property Tax Rule 462.160 provide the statutory and regulatory framework.

The annotation is administrative guidance, not a judicial holding. For a substantial property, confirm the intended treatment with the county assessor before recording and identify the appropriate exclusion in the PCOR or other required filing.

Where the transferor and spouse occupy different positions—for example, Wife transfers her community share while Husband alone is the present beneficiary—§ 62(d) and the interspousal exclusion of § 63 should be analyzed together rather than assuming § 62(d) alone resolves the transfer.

The later termination of the noncharitable interest is a separate change-in-ownership event that requires its own analysis.

Retirement accounts have their own consent regime

Do not apply the inter vivos CRUT funding rules mechanically to a retirement-account beneficiary designation.

Boggs v. Boggs (1997) 520 U.S. 833 held that ERISA preempted a state rule permitting a nonparticipant spouse to transfer by testamentary disposition an asserted community-property interest in undistributed ERISA pension benefits. ERISA, the Retirement Equity Act, the QDRO rules, and the plan's governing provisions control federally protected plan benefits.

An ordinary IRA is different. California community-property law can apply directly.

Probate Code § 5020 provides that a nonprobate transfer of community property on death made without the spouse's written consent is ineffective as to the nonconsenting spouse's interest.

Section 5022 then draws exactly the distinction discussed above: consent to the beneficiary designation is not itself a transmutation unless the writing independently satisfies Family Code § 852.

There is one additional wrinkle. Probate Code § 5030 provides that the consent remains revocable during the marriage and becomes irrevocable upon the death of either spouse.

Thus, where community-property IRA benefits are designated to pass at death to a testamentary CRUT:

• determine the community interest;

• obtain the required Probate Code consent;

• do not turn the consent into a transmutation unless that is actually intended; and

• remember that the consent remains revocable during the marriage.
  

The interspousal transaction may also be the lawyer's transaction

If both spouses are clients, moving substantial economic value from one to the other cannot be reduced to a signature line.

Family Code § 721 imposes fiduciary obligations between spouses. A transaction that advantages one spouse may trigger California's interspousal undue-influence doctrine, particularly where the disadvantaged spouse relinquishes a substantial economic interest.

The lawyer representing both spouses has a separate issue.

California Rule of Professional Conduct 1.7 applies where there is direct adversity or a significant risk that representation of one client will be materially limited by duties to the other. Informed written consent may permit some joint representations. Other conflicts may make continued joint representation inappropriate.

Independent counsel is not categorically required every time spouses fund a CRUT.

But consider the economics of the one-life structure. Wife may be contributing one-half of a highly valuable asset while agreeing that Husband receives the entire unitrust interest and that charity receives the property when Husband dies. The federal marital deduction may make that arrangement tax-efficient, but it does not make the spouses' economic interests identical.

Where the value shift is substantial, independent advice is not boilerplate. It may be the most useful evidence that the transaction was informed and voluntary.

A better drafting sequence

The CRUT should be drafted only after five questions have been answered.

1. Who owns the funding asset?

Document acquisition date, domicile, source of funds, title history, debt service, marital agreements, prior transmutations, tracing, and any Moore/Marsden, Pereira/Van Camp, or equity-compensation apportionment.

2. Who must participate in the transfer?

For community personal property, have both spouses execute as transferors or obtain any written consent required by Family Code § 1100.

For community real property, obtain both spouses' joinder under § 1102.

Do not use a pre-funding transmutation merely because the standard CRUT form has one blank labeled "Donor."

3. Who should receive the unitrust amount?

Decide this independently from donor status.

Both spouses may be donors while one spouse alone is the recipient. If the design relies on one life to satisfy § 664(d)(2)(D), do not inadvertently create a second noncharitable payment interest.

4. Who owns the resulting unitrust interest under California law?

Do not leave this implicit.

If the parties intend the one-spouse unitrust interest to remain community property, document that understanding.

If they intend it to become the recipient spouse's separate property, draft the necessary express declaration with Family Code § 852, MacDonald, Benson, and Begian in mind.

This is a separate issue from whether the community corpus was validly contributed.

5. What federal transfers follow from those state-law rights?

Only then apply §§ 170, 2522, 2523(g), 2523(i), 2033, 2036, 2055, and 2056.

Run the § 664 remainder test using the actual recipient or recipients, applicable mortality table, payout rate, payment timing, and § 7520 rate. The CRUT deduction calculator runs that computation.

Then separately review death, divorce, property tax, retirement accounts, and the lawyer's conflict.

Three common structures

Structure	Measuring period	Effect on the 10% test	Principal cost or benefit
Separate property; that spouse is sole recipient	That recipient's life or the stated term	Single life or term	Simplest structure; the file must still carry characterization evidence
Community property; both spouses transfer; one is sole recipient	The recipient's life alone	Can qualify where a two-life trust would fail	No successor unitrust payments to the nonrecipient spouse absent an arrangement outside the CRUT
Community property; both spouses transfer and both are recipients	Both lives, where the trust continues until the survivor dies	May fail for a young couple	Symmetry; fits the published divorce facts of Rev. Rul. 2008-41 most closely

One spouse's separate property; that spouse is sole recipient

This is the simplest structure.

The owner contributes the property, retains the unitrust interest, and transfers the charitable remainder. There is no interspousal transfer merely from funding the CRUT. The trust is measured by that recipient's life or the stated term.

The file should nevertheless contain enough characterization evidence to support the separate-property conclusion.

Community property; both spouses transfer; one spouse is sole recipient

This is federally permissible and can be especially useful where a two-life CRUT would fail the 10% remainder test.

Both spouses' participation must satisfy California transfer law. The resulting unitrust interest must then be characterized deliberately. If the nonrecipient spouse transfers that interest to the recipient spouse, § 2523(g) may provide the marital deduction if its requirements are satisfied.

The economic cost is equally clear: unless some other arrangement is made outside the CRUT, the nonrecipient spouse has no successor CRUT income after the recipient dies.

Community property; both spouses transfer and both are recipients

This is often the most intuitive structure where both spouses need lifetime income.

The charitable remainder is valued over both measuring lives if the trust continues until the survivor dies, which may cause a young couple to fail the 10% test.

Its advantage is symmetry: both spouses participate economically, and concurrent lifetime recipients fit the published divorce facts of Rev. Rul. 2008-41 more closely than the alternatives.

The choice among these structures should be driven by ownership, actuarial qualification, economics, and the couple's objectives—not by a reflexive assumption that donors and recipients must be the same people.

The practical rule

A California CRUT has two legal maps laid on top of each other.

Federal law asks who transferred property, who receives the unitrust amount, how long the payments can continue, and what value remains for charity.

California law asks who owned the property before the transfer, whether both spouses had to participate, and what property rights each spouse owns after the transaction.

Neither map can replace the other.

The key drafting principle is therefore:

Characterize the property first. Validate the transfer second. Identify the § 664 recipient third. Then characterize the resulting unitrust interest and apply the federal transfer-tax rules to the property rights that actually exist.

A one-spouse CRUT is not the problem.

Treating a two-owner asset as though it had one owner is.

This article is general information only. It is not tax or legal advice, and it does not create an attorney-client relationship. Marital-property characterization depends on the facts of the particular marriage and asset. No published California decision located as of August 2026 squarely determines the marital-property character of a sole-spouse unitrust interest created by a CRUT funded directly with community property by both spouses; the discussion of that issue reflects application of California's general transmutation principles rather than a CRUT-specific holding. Private letter rulings, where mentioned, are nonprecedential under IRC § 6110(k)(3). Consult counsel admitted in the relevant jurisdiction.