Stockton, CA asked in Divorce, Estate Planning, Family Law and Real Estate Law for California

Q: If a property is sold and new one purchased does it make it part of the estate prior to marriage?

My parents divorced in 1977 each kept one as part of the settlement. Several years later my father sold his and used the proceeds to purchase new home. About 7 years later he remarried and she moved into my dads. Some time later he sold that property and again used money to purchase new home. When my day passed his wife said there was no will. But, expressed to her verbally not to give me anything. Since the house my dad owned before they married was sold and proceeds were used for new house does that still make it part of his estate. I am wanting to file a claim against her. I am his only blood child and I do not believe my dad ever told her that.

1 Lawyer Answer
James L. Arrasmith
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  • Estate Planning Lawyer
  • Sacramento, CA
  • Licensed in California

A: Under California law, property acquired before marriage generally remains the separate property of the spouse who acquired it. If your father sold a property he owned before remarrying and used those proceeds to purchase a new home, the nature of the new property's ownership depends on how it was managed and titled after the purchase. If the new home was kept in your father's name only and not commingled with marital assets, it may still be considered his separate property.

However, the situation can become complex if the new home's expenses were paid from joint accounts or if your father's spouse contributed to its upkeep or mortgage payments. Such actions could potentially create a community property interest in the home, despite its origins from separate property. The determination of whether the property remains separate or becomes marital/community property can be nuanced and depends on specific facts and actions taken during the marriage.

Given your interest in filing a claim against your father's estate, it would be advisable to consult with a legal professional who can assess the details of your case. They can provide guidance on your rights as an heir and the steps necessary to pursue a claim. The absence of a will means California's intestacy laws would typically govern the distribution of your father's estate, which often favors biological children, but the specific circumstances of how the property was handled will be crucial.

Nina Whitehurst agrees with this answer

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