My Spouse Owned the House Before We Married. Can Their Children Kick Me Out?

California is one of a handful of states that honor community property rights. This means, in general, that anything acquired during the time of marriage, whether property or debt, belongs equally to both spouses or partners. The beginning of the time of marriage is generally pretty straightforward—it’s when you two took the vows. The ending of the time of marriage can be trickier, as both separation and divorce can count as the end. Anything either spouse or partner acquired prior to marriage is considered personal or separate property, belonging to the person who acquired it before taking the marriage vows. However, there is also the possibility of separate property becoming commingled. 

Here’s an example: One spouse or partner owned a home before getting married, but after marriage, the other spouse or partner helps make mortgage payments or contributes to upkeep on the property. The property thus becomes part personal property and part community property, meaning matters can get tricky if a divorce occurs or the original separate-property owner passes away.

A separate-property owner, if he or she dies, may leave their assets in a will or trust to children from a previous marriage, or to anyone else for that matter. But what happens if an asset has become commingled? It can be difficult to determine which part of the asset is separate property and which part is marital property.

If you find yourself in a complex situation regarding who owns what and who is entitled to what after the death of a spouse anywhere in Southern California, contact Bochnewich Law Offices to speak with our estate administration and probate attorney. Our team is proud to serve clients throughout Los Angeles, San Bernardino, Riverside, Orange, and San Diego Counties.  

Community Property vs. Separate Property in California 

California has been a community property state since its founding in the Gold Rush era. What this means, as referred to above, is that anything acquired during the time of marriage, whether property or debt, jointly belongs to the spouses or partners involved. Anything acquired by either person before entering into the marriage is considered personal or separate property, which can possibly become commingled.  

There are some exceptions to property or something of value obtained during the period of marriage. Anything personally inherited or obtained as a gift to that person solely is considered separate property even if acquired during the time of marriage.  

The Golden State also recognizes both prenuptial and postnuptial agreements, the latter of which many states do not recognize. If you want to protect your assets after getting married, it is important to consider a prenuptial agreement. A postnuptial agreement, though it may be harder to negotiate, can also protect assets from becoming community property.  

How Does a Will or Trust Figure into Inheritance? 

Essentially, barring the existence of a prenuptial or postnuptial agreement, you cannot will away more than your half of what was acquired during the time of marriage (unless it came from an inheritance or gift in your name only). A trust has the added advantage over a will in that it can mostly, if not entirely, avoid the probate court proceedings that a will must go through.  

Now, if your spouse or partner, in his or her will, opts to leave their personal or separate property to children from a previous marriage, that is perfectly legal unless it has become commingled.  

In that case, matters can get pretty tricky and challenging in deciding who owns what and to what percentage. Someone may end up having to buy out someone else to finish the deal, or the property can be sold and the proceeds divided according to a formula you work out. It’s vital to contact a probate attorney to help you and your family with these matters. 

What If There Is No Will or Trust? 

If there is no will or trust designating who should get one spouse’s or partner’s separate property, or percentage of a commingled property, then the probate court will have to weigh all factors and decide on an equitable distribution.  

Those who stand in line to inherit such assets will need to make their case before the court, and to do so will require the assistance of an experienced and knowledgeable probate/estate administration attorney. The court will generally adhere to the rules of intestate succession unless there are other prevailing factors. 

Reach Out To Experienced Legal Counsel 

The concept of 50/50 sounds pretty simple, right? Not necessarily, since assets can become commingled. There can be times of separation when assets acquired may or may not become community property. Additionally, defining what constitutes separation can be complex in certain situations. No matter what specific issues you face, if you’re involved in a community property dispute following the death of a spouse or partner in Southern California, contact us at Bochnewich Law Offices. Set up a one-on-one consultation today.