Legal Question in Real Estate Law in California

Re: Community Property

From the facts you've stated, it appears that the house will be most, if not all, the separate property of your stepfather. If there were any repairs or improvements made during the marriage, the community would be entitled to some portion of the value of the house.

Regardless of community property rules, there would be ways that the parties could agree that your mom would be protected. For example, your stepfather could agree to transform it into community property, or set up a trust from the proceeds. There are probably a number of other solutions that could be reached if the two parties are agreeable.

Re: Community Property

Did stepfather change title to include your mother, it included in his estate via will or trust to your mother? One concern with selling it now, and not at death, is the property taxes.

Joel Selik

Re: Community Property

Under community property tracing rules, the house would remain your stepfather's separate property unless he has taken some action to 'transmute' it to community property, in whole or in part. This could be by an interspousal deed or by use of community funds to make additions or capital repairs that extend the life of the house.

Important questions here are (1) whether this couple, after 22 years together, has accumulated other assets that are community property; (2) whether they have provided for each other by will or other testamentary vehicle such as living trust; and (3) if not, are they willing and able to do some serious financial planning now?

I strongly recommend that the couple consult with an estate planner and/or elder care expert with respect to wills, use of trusts, a possible life estate in the house for the survivor, durable powers of attorney for health care, tax planning and the like. This should not be left to a time when one or the other is too frail or has lost mental capacity to deal with the issues competently.