Benicia, CA asked in Divorce and Estate Planning for California

Q: Mom has dementia. Husband refuses to pay for care. How can she have access to community property to pay for her care?

Due to Covid and mom's progressing condition, she is no longer living with dad in their shared home. Dad controls rents from RE rentals, and has made more money than mom. He will not pay for any care. My sisters and I are struggling to pay for mom's care. I have power of attorney to take care of mom's financial affairs. The only way dad will pay is for mom to divorce him so she has access to community property, pension and spousal support. How can I do this? I would like for mom to be able to qualify for MediCal.

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1 Lawyer Answer
Julie King
Julie King
  • Estate Planning Lawyer
  • Monterey, CA
  • Licensed in California

A: I'm sorry to hear about your situation. I am not a family law attorney, but I can tell you this: Your mother owns half of the community property in the marriage and all of her separate property.

Community property is property that was earned during marriage (assuming there is no prenuptial or postnuptial agreement stating otherwise). So, for example, if your father received a paycheck from work in the amount of $1,000, the law says that $500 of that money is your father's and $500 of it is your mother's. Your father may SAY it is all his because it is from his job, but California law says otherwise. So, if there is a joint bank account with money earned by either your father or mother during marriage, then you should be able to access it using your power of attorney. However, if only your father's name is on the account, then you will have trouble accessing the money and will need to speak with a family attorney.

Separate property is owned 100% by EITHER your father or your mother. Separate property is: (1) any asset owned before marriage that is kept separate, i.e., in a separate bank account and not mixed with any community property asset; and (2) an inheritance or gift given to a person during marriage. If your mother has any separate property, you can access that using the power of attorney and easily pay for your mother's medical care.

I hope that helps give you some background information and a family attorney answers the rest of your question.

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