Skip to main content

California is a Community Prop. State, can the surviving spouse benefit from a prop under a Trust before marriage?

San Jose, CA |

Scenario: My friend's husband owned a property from previous marriage. Surviving spouse/husband recorded a Quit Claim Deed to himself as Trustee of a Trust. Husband re-married to my friend in 12/1996. My friend was never on the Trust or Title. Husband died Jan 2012. Can my friend benefit from the house since California is a Community Prop State? Also, he is supposed to grant the Quit Claim Deed to the Trust not to him as a Trustee, right? My friend is now being evicted by the Successor Trustee (daughter from previous marriage). What can she do at this point?

Attorney Answers 4


Mr. Bergman is 100% correct. Situations like the one your friend is in highlight the importance of estate planning in second marriages.

The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of California. Responses are based solely on California law unless stated otherwise.

Mark as helpful

2 lawyers agree


Your questions actually overlap both estate planning law and family law. Brief answers (in order) are as follows:

1. Your friend was married from December of 1996 through January of this year, and it sounds like she was living in the house owned by her husband during that time. The house was owned by husband's trust, which I am assuming was a revocable (i.e. changeable) living trust he created to hold his property separate from his marriage. Assuming that there was no pre-marital or pro-nuptial agreement where your friend agreed that his property would remainlly exclusively his property, it is possible that she was acquiring a 50% community property interest in the growth in the value of the house from the time that she became married. This could occur if either her husband's salary or wages and/or her own salary or wages from work was being used to make mortgage payments, pay taxes and insurance and maintenance on the property. This is because community property laws in California provide that, in the absence of an agreement that says otherwise, income from employement is owned 50/50 by husband and wife regardless of who is actually earning the income. This would mean that one-half of the money used to maintain the house may have legally belonged to your friend as her share of community property.

The second question is simple. The Quitclaim Deed should have been titled to your friend's husband as trustee of his trust, as he did. Granting title just to a trust makes it unclear who actually has the authority to borrow against or subsequently sell or transfer the property, which could cause major problems later on.

As for the third question, if your friend did acquire a community property interest in her deceased husband's property, especially after 15+ years of marriage, then she is a part owner of the property and legally cannot be evicted from the property. This is because ownership of real estate carries with it a right to possession of the property, and she would be an owner not a tenant.

Your friend needs to consult with a family lawyer immediately concerning the community property issue, and likely an estate litigation attorney to assert her possible ownership rights in the eviction proceeding. Because evictions can proceed very quickly, she needs to act right away.

Please remember to mark what you believe to be the best answer to your question. This answer is provided by estate planning attorney Robert P. Bergman, with offices in San Jose, California. Mr. Bergman is a Certified Specialist in Estate Planning, Trust and Probate Law (State Bar of California Board of Legal Specialization), and has been practicing since 1980. This answer does not create an attorney-client relationship, and is only intended to provide general legal advice within the limits of the question asked. If you wish to create an attorney-client relationship for specific legal advice, it will be necessary to enter into an engagement for legal services. More general legal information about wills, living trusts, and estate planning can be found at Mr. Bergman's main website at, or his information website at Mr. Bergman also offers free living trust seminars and wealth preservation seminars at his offices in San Jose. For those unable to attend a live seminar, an online living trust seminar may be viewed or downloaded at

Mark as helpful

1 found this helpful

7 lawyers agree

1 comment



Thanks to Atty. Robert P. Bergman for a very detailed explanation to all points of my questions. I will share this information to my friend and have her contact a Fam Atty right away. Thank you and brst regards!


Our office has maintained a family law practice in Alameda County, Santa Clara County and Contra Costa County for the past 31 years. I have represented several thousand of individuals in family law matters.

Mr. Bergman's response to your inquiry is very informative. By and large what we are talking about here is a pro tanto community interest that may be acquired in a property even though your name is not on the ownership. The solution to the problem may not be real simple. It's most difficult to bring claims into family law court once someone has passed away. Very, very few exceptions exist and the rights will probably will have to assessed in the parameters of the Probate and Trust Department of your local court jurisdiction and or in a separate independent action against the successor trustee ascertaining a claim against the property and file a lis pendens with your complaint. Once the notice of pending action ( lis pendens) is filed you will have established a claim ownership in the property and this hopefully would do away with the possibility of a quick eviction.

If you found this answer to be helpful let me know by checking the "Mark as Helpful" box on the bottom of this answer. It's easy and appreciated.

This participating Attorney does not warrant any information provided, nor are we creating an Attorney-Client relationship by providing said information to you on this site. Nothing contained herein is intended to constitute, offer, induce, promise, or contract of any kind. The content provided is presented as a courtesy to be used only for informational purposes and is not represented to be error free. The Law Offices of John N. Kitta makes no representations or warranties of any kind with respect to its answer to inquiries, and such representations and warranties are being expressly disclaimed. Given limited facts, we are attempting to share relevant information concerning this area of the law as a public service.

Mark as helpful

1 found this helpful


I agree with the analysis of the community property issues, but there is another issue to consider.

Did the deceased husband execute the trust before his marriage to your friend? If so, did he amend the trust or execute a new will after their marriage? If his trust was pre-marriage, and was not amended to provide for, or to specifically state that he was intentionally not providing for your friend, California Probate Code section 21610 states that your friend is entitled to all of the deceased spouse's interest in the community property, and her intestate share of his separate property.

Your friend needs to consult with an attorney experienced in probate matters pronto.

Disclaimer: I hope you found this information helpful. If you did, please indicate so with a thumbs up. However, this answer is provided for general informational purposes only. This answer does not constitute legal advice and should not be relied on. Legal advice can only be provided after consultation with a licensed attorney in your state with experience in the area in which your concern lies. This is so because each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and/or documents at issue. This communication does not create an attorney-client relationship.

Mark as helpful

Wills and estates topics

Recommended articles about Wills and estates

What others are asking

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer

Browse all legal topics