Legal Question in Real Estate Law in California
Homestead Law
I am in the process of completing my Living Trust and want to include a recorded home-stead on my property.I have owned the house for 5 years, it was purchased prior to my getting married last year. My husband & I have a prenuptual agreement in which he has no financial interest in the property and that the financial arrangements we had prior to the marriage will continue. If I should predecease him I have made provision in my will for him to stay on in the house, and the bulk of my estate will go to my son.
My question is which form do I use for the homestead?. single or married?
1 Answer from Attorneys
Re: Homestead Law
The distinction made in the declaration of homestead isn't "single vs. married," it's "home co-owned by spouses vs. home not co-owned by spouses." Since you are the only one with an ownership interest in your house, you would use what you're thinking of as the "single" form, although if it's properly designed (where did you get it, anyway?) it will NOT ask whether you are married or not, it will only ask whether the property being homesteaded is owned by spouses or not.
As far as I know, there is no official (i.e., Judicial Council recommended or mandatory) form for recording a declaration of homestead. The law regarding what a homestead declaration must contain is found in the Code of Civil Procedure at section 704.930. There are no doubt privately-prepared and -printed forms for sale. They are probably adequate for the task, but by their design may lead to questions such as yours.
You may want to look at Code of Civil Procedure sections 704.910 through 704.995 to get a better feel for the applicable law. Note especially 704.995, which extends the homestead protection to a spouse who inherits some or all of the interest in the dwelling.
I don't know your circumstances, but I should point out that declaring a homestead is unnecessary and superfluous for most folks. I assume you have SOME idea what a homestead declaration is all about......shielding some equity from creditors. You should also consider that the same general category and amount of shield is available without filing any declaration, as a matter of other law, including the "automatic homestead" at Code of Civil Procedure sections 704.710 to 704.850.
Therefore, unless you are pretty sure of why you're going to record a declared homestead, you might want to reconsider.........filing a declaration of homestead may be considered a
sign of financial instability/weakness by creditors and credit-rating agencies.
Hope this is helpful. The statutes referenced can be found on line or at most libraries.
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