Legal Question in Wills and Trusts in California

Quit Claim and Community Property

My step-dad died without a will. He & my mom had built a house on land he brought into the marriage. My mom always thought the house was community property since it was built with community property assets. However, my step-dad had to mortgage the property early in their marriage to pay off his ex-wife, and my mom was required by the lendor to sign a quit claim. Her understanding was that it was a contract with the lendor, not with her husband, and that it wouldn't affect her interest in the house unrelated to the mortgage.

Now her lawyer is saying that quit claim (signed over 20 years ago for a small mortgage that was probably paid off over 15 years ago) means the house is not community property, even though it was built with community assets. Can this be correct? In that event, who is considered a ''child'' under the intestate inheritance laws: only his biological children, or does it include his step-children?


Asked on 11/23/02, 5:02 pm

1 Answer from Attorneys
Ken Koenen Koenen & Tokunaga, P.C.

Re: Quit Claim and Community Property

While it the quit claim deed may have removed the property from community property, that does not mean that there is no community interest in the property. If it can be shown that community assets were used to pay off or pay down the loan, the community could have a substantial interest in the property.

If that is the case, then the property could be characterized as part community and part the separate property of your step-father. Once the percentage is determined, your mother would inherit 100% of the Comm. Prop. and either 1/2 or 1/3 of the separate property.

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Answered on 11/24/02, 2:00 pm


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