Legal Question in Family Law in California
Is a legal separation equivlent to a divorce for estate tax purposes?
My parents were legally separated (via a court order) in 1994 after 40 years of marriage. Per the terms of the order, my father lived in the family home until he passed away eariler this year while my mom purchased and lived in a separate residence. Title to the family home is in joint property and will go to my mom. I understand that marital property can be excluded from the estate tax calculation if there was no dissolution of the marriage. My question: is a legal separation equivalent to a dissolution of marriage?
Thak you.
1 Answer from Attorneys
Re: Is a legal separation equivlent to a divorce for estate tax purposes?
Most married couples took title to their real property in joint tenancy. 40 years ago most real estate agents recommended joint tenancy.
Property owned in joint tenancy upon the death of one of the joint tenants passes automatically to the surviving joint tenant or tenants.
They may have changed the manner in which the property was held at the time of the legal separation.
To determine how title is held you must look at the deed to the property. There are three possibilities:
as Joint tenants
as Tenants in common. and
as community property
Property held as tenants in common or community property can be passed through a will. However, community passes to the spouse unless it is passed through a will.
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