Legal Question in Real Estate Law in California
f my father in law gives my husband $50,000 of his inheritance towards a down payment on the house for us, is that inheritance that goes toward the down payment considered community property or only belongs to my husband? Can I sign a legal document that says that I want no claim to the inheritance just half of the mortgage payments I made if we were ever to split up?
1 Answer from Attorneys
Gifts, including inheritances, to one member of a married couple are considered separate property, not community property.
As a general matter, it is possible for married persons to change the character of separate and community property by way of a written instrument. There are some safeguards written into the law to prevent frauds, misunderstandings and mistakes.
Please also note that, even when a home is acquired as the separate property of one spouse, that a community-property interest begins to develop when there is a mortgage on the home that is paid with either spouse's earnings (wages, salary). This is because the wages or salary of a married person are community property. The legal term for the community's interest in the previously-100%-separate property is a "pro tanto" interest, and it starts out tiny, but as payments are made over the years, can get rather large.
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