Can a trust override the spousel law of home ownership in a communiy property state?

Asked on November 12, 2012 under Estate Planning, California


M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

Most times people ask how to avoid probate using a trust and there are special trusts for those married couples with community assets in California.  But I think what you are asking is if your spouse can place property, perhaps titled in his or her name alone, in to a trust to avoid distribution as community property, correct?  In the event of a divorce?  I would say no, you could attack the trust in a divorce on the basis that the property that was transferred was not separate property under the law (title does not matter in a divorce thank goodness).  Good luck.

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