Legal Question in Real Estate Law in California

Re: Homestead for a Married couple, but only ONE person is on title on home

Unless the property was acquired as your sole and separate property, without the use of community funds (i.e. all of the money used to purchase the home was your separte property, you should probably use the form for married persons.

Re: Homestead for a Married couple, but only ONE person is on title on home

I agree with Mr. Hoffman. The question of whether the house is your sole and separate property is very technical and goes way beyond what shows on the county recorder's records. For example, if you or your wife has been making or constributing to mortgage payments and using current earnings as the money source, each of those payments gives your marital community, and hence your wife, a tiny sliver of interest in the property.

It would be very questionable whether she could declare a homestead on a house that shows in the official records as your separate property, but if you do the declaration you should do it on the form that shows your marital status correctly, and leave any question about percentage ownership for later on, if it comes to a point where you have to use the homestead as a shield against a creditor attempt to seize your equity in the property in satisfaction of a claim.

If that happened, the relative percent ownership might come into question, for example if the debt were one on which only one of you were liable, but since married couples' debts tend to be community debts rather than separate, even then the issue might not arise.

A quick reading of the declared homestead law shows that it is more concerned with who lives there, i.e., is it a family unit, than what their relative ownership interests might be.