Legal Question in Wills and Trusts in California

For the answer to this question, ask hubby to show you his will or estate plan. If he does not have a will, or you do not have a will, go to see a local estate planning attorney. If he were to die tomorrow without a will, you as his spouse would inherit the equity in the house. Whether you would have to go to probate court depends on how title was taken. He is free to write a will and leave everything to his adult children, in which case you would be out of luck. If he won't show you his will or discuss the issue, assume that when he dies his kids will kick you out of the house and you'll be broke and homeless except for your community property interest in the equity in the house. Proceed accordingly. Also, owning a mortgaged house won't do you much good unless he has enough life insurance, or you have enough income, to enable you to pay the mortgage.

If you and your husband hold title to your house as joint tenants you would inherit the home as a matter of right. Since you purchased the home prior to marriage, I am assuming that you do not have title as community property unless you have made that change to your deed after your marriage. If you hold the property as tenants in common, you may have some of the problems which you are alluding to here.

You should discussed the matter with your husband, particularly as to any existing Will and/or Trust. If your husband does not have a Will or Trust, I would advise you both to meet with an estate planning attorney. Actually, even if either one of you has a Will or Trust that was executed prior to your marriage, it is advisable that you seek legal assistance to update these documents. Because of the timing of the purchase of your real property, it is important that both you and he have a well written estate plan.

If you two own your property other than as joint tenants, your husband can only will his one-half of the community interest and any separate property interest in this property. Since you state that you and he originally purchased the property prior to your marriage, I am assuming that you also contributed funds to the purchase and the building of equity of your home. In that case, you would both have community and separate property interests that need to be sorted out in an estate plan.