Elder Law - Len and Rosie


Wife wants it in writing

Dear Len & Rosie,

My husband bought a home 25 years ago with his first wife. They were divorced two years later. I moved in 20 years ago, and we were married 15 years ago. He never put my name on the title because it’s on Prop 13. He was concerned it would change the taxes.

The home loan payments are made out of our joint checking account, and I have put my own earnings into the house. The house will be paid off in three years. I am concerned about what would happen to me if he were to die or we were to divorce. He has three children from his first marriage. Would the California property law apply or would the property go to his children? He says we will get it changed and put my name on the title. It never seems to get done.

Sandee

Dear Sandee,

Let’s run down the list of excuses your husband has made to shine you on and keep the property in his name. We’ll add a few to the list that you may have already heard. Property taxes, Homestead, “But, Honey, the bank will call the loan”, “I bought it before we got married”, and my personal favorite, “It’s mine, mine, mine.” None of them are true.

The home will not get reassessed if he adds you to the title, because transfers between spouses and registered domestic partners enjoy an unlimited reassessment exclusion under Proposition 13. Homestead applies to creditors in bankruptcy, not to spouses. And the bank will not call the loan because they don’t care as long as the borrower remains on title and they still get paid.

What it all comes down to is that he thinks the home is his because he bought it before you were married. He is only half right. Under California’s community property system, everything either spouse earns during marriage is community property and everything acquired with community property is community property. Even though the deed says the home belongs to your husband alone, there is a community property interest in the home that is half yours.

The community owns whatever portion of the purchase price of the home that is paid off with community property. Interest payments do not count, only payments towards principal. Let’s say the down payment and the principal portion of the loan payments your husband made prior to your wedding paid off one-third of the purchase price of the home. That means only one-third of the home is actually your husband’s separate property. The rest belong to you and your husband as community property, and half of that is yours.

The bad news is that you do not get any credit for contributions you made while you were living together for five years prior to the marriage. Unless you had an agreement that you would get equity for your pre-marital payments they are considered to be rent.

Unless he is finally willing to sign a deed giving you your share, there is nothing you can do unless you file for divorce or make a claim against his estate when he dies. Whatever you do, do not sign any “Interspousal Quitclaim Deeds” that could result in a loss of your community property rights.

Sit down and remind him that after 15 years of marriage, you are probably a “keeper”. If he wants to keep it that way, he will need to act with a little common sense and generosity and show his appreciation for all you have done for him.

Len & Rosie

Len Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway, Sonoma, at 996.4505, or lentillem.com. Len also answers legal questions weekdays on The Len Tillem Show, a podcast available via iTunes, Facebook, spreaker.com and lentillem.com.

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