My father was married on June 3, 2003. He had purchased a house prior to this marriage. At the time of the marriage, he still owed $40,000 on a $100,000 mortgage. He slowly paid the $40,000 after he was married via normal mortgae paymment arrangements, arguably with community funds. Does he own this house as separate property so that he can leave it to his children even though some of the mortgage was paid after he was married with community funds? I realize that his wife has a life estate pursuant to homestead constraints, but I thought the house was his separate property because he acquired it prior to his marriage.
2 Answers from Attorneys
Re: Dad's House
You are correct that the house was your father's separate property. His wife has a community interest in the portion of the funds used to pay off the mortgage, taxes, insurance, etc. and her homestead life estate. That, of course, is assuming your father didn't leave a will that gave his property as he saw fit, rather than by the laws of devise and descent which only come into play if there's no will.
Re: Dad's House
From what you're saying, only 60% of your father's house was his separate property coming into the marriage. The remaining 40% that was paid with community property is just that--community property.
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