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Q: Community Property for out of state spouse? ( Answered 5 out of 5 stars,   2 Comments )
Subject: Community Property for out of state spouse?
Category: Relationships and Society > Law
Asked by: rusty12345-ga
List Price: $20.00
Posted: 08 Nov 2005 10:35 PST
Expires: 08 Dec 2005 10:35 PST
Question ID: 590598
I am going through probate on my brother's (recently
deceased)California estate which consisted of a house and desert
property.  It was held with me as tenants in common with no will and
therefore in probate...In the meantime I was granted permission by the
court to sell the desert property to cover expenses.  Question?
I am also recently married and live in Florida.  Do I need to include
my wife's name in the sale of the property or since I live in a
non-community property state can I sell it without her approval....Am
I bound by California community property law.
Subject: Re: Community Property for out of state spouse?
Answered By: juggler-ga on 08 Nov 2005 11:30 PST
Rated:5 out of 5 stars

First of all, I should note that, as always, Google Answers provides
general information and is not a substitute for professional legal
advice. If you need professional legal advice, you should contact a
qualified attorney in your area.


The answer to your question is "no."

Property inherited by one spouse is NOT community property in
California.  Inherited property is "separate property," so even if you
and your wife were domiciled in California, you wouldn't need her
approval to sell it.

"Separate property" is defined in Section 770 of the Family Code. 
Inherited property is specifically mentioned in 770(a)(2) as property
acquired by "bequest, devise or descent."

"770.  (a) Separate property of a married person includes all of the
   (1) All property owned by the person before marriage.
   (2) All property acquired by the person after marriage by gift,
bequest, devise, or descent. 
   (3) The rents, issues, and profits of the property described in
this section.
   (b) A married person may, without the consent of the person's
spouse, convey the person's separate property."

search strategy:
"find california code"

I hope this helps. If anything is unclear, please let me know via the
"request clarification" feature. Thanks.

Request for Answer Clarification by rusty12345-ga on 08 Nov 2005 13:16 PST
Thank You Juggler...then is the family code saying that the 1/2
property that I acquire through the probate court process without a
will written by my brother and I am given it based on the fact that I
am his only surviving relative, would that be considered by "bequest,
devise or descent"...Which one would it be? Technically, it is not
inherited, right, but awarded me by the court...and awarded (don't
know if that is the right word) it after marriage?...Let's say that I
was bound by the California law, would I be exempt due to the fact
that I reside in Florida.?  Thank You.

Clarification of Answer by juggler-ga on 08 Nov 2005 13:27 PST
When you inherit from someone who dies without a will because you're
his heir, it's called "intestate succession."  Intestate succession is
considered "descent."

The fact that you're a resident of Florida is really beside the point.
 Even if you and your wife were Californians, it would be considered
your separate property.

I hope this helps.
rusty12345-ga rated this answer:5 out of 5 stars and gave an additional tip of: $10.00
Very good and thorough....Thank You

Subject: Re: Community Property for out of state spouse?
From: juggler-ga on 08 Nov 2005 16:59 PST
Thank you for the tip.
Subject: Re: Community Property for out of state spouse?
From: rusty12345-ga on 08 Nov 2005 18:30 PST
perhaps juggler can help me on my property tax question

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