mitche
recently joined
Reged: 07/03/07
Posts: 14
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Scenario:
During my girlfriends marriage, her sps of 23 years inherited 140k. Upon the sale of their first home, they took the equity gained in the sale, plus the 140k inheritance, and purchased their current home.
Obviously, their in the midst of a divorce.
The soon to be ex is saying that he could "take back" the 140k upon the sale of their current home. (Holding this over her head)
Q. Don't cummunity property laws supercede any inheritance once it's spent on a mutual asset?
Thanks.
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googledad
Carpal \'Tunnel
Reged: 12/31/05
Posts: 10207
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Q. Don't cummunity property laws supercede any inheritance once it's spent on a mutual asset?
A. Yes !
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Careful. We don't want to learn from this.
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matilda
Pooh-Bah
Reged: 11/11/04
Posts: 2087
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I know in my sister's case she is entitled to her inheritance that was used as a down payment for a home. My father loaned her the money for a down payment and upon his death became her inheritance. There is a clear record of the money path and the lawyers agree that she is entitled to her inheritance even though money was co-mingled. I'm sure this would be different depending other circumstances and the state you live in.
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mitche
recently joined
Reged: 07/03/07
Posts: 14
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Thanks for the input. The state in question is California.
Wouldn't he (the ex) have to supply some sort of evidence as to the property was purchased as an investment? It was purchased as a home in which to raise kids, not as a speculative real estate investment. At what point does ones inheritance override community property laws? I think that an aggressive attorney could argue that the house was not originally purchased as an investment, but rather to raise a family.
Any additional thoughts on this?
Thanks!
m
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googledad
Carpal \'Tunnel
Reged: 12/31/05
Posts: 10207
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For the purpose of division of property on dissolution of marriage or legal separation of the parties, property acquired by the parties during marriage in joint form, including property held in tenancy in common, joint tenancy, or tenancy by the entirety, or as community property, is presumed to be community property. This presumption is a presumption affecting the burden of proof and may be rebutted by either of the following: (a) A clear statement in the deed or other documentary evidence of title by which the property is acquired that the property is separate property and not community property. (b) Proof that the parties have made a written agreement that the property is separate property.
Where economic circumstances warrant, the court may award an asset of the community estate to one party on such conditions as the court deems proper to effect a substantially equal division of the community estate.
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Careful. We don't want to learn from this.
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mitche
recently joined
Reged: 07/03/07
Posts: 14
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Interesting. If I understand what you've written- unless otherwise stated in writing, that community property law supercedes inheritance law, correct?
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matilda
Pooh-Bah
Reged: 11/11/04
Posts: 2087
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My guess is that there is a will giving your friend's STBX his inheritance. He more than likely deposited this money into an account. If the account was in his name and marital funds weren't co-mingled then the inheritance would be his to keep. Now if he demonstrated that non co-mingled inheritance went directly to a down payment he will probably get to keep his $140K inheritance. There are a lot of unknowns in the situation that could make this go in either direction. I know that my sister, who is in California, is getting back her inheritance used as a down payment because she is legally entitled to it. Her STBX and his attorney tried to fight it, but gave up. The property in question was the family home and not investment property. I think you are getting hung up on the word investment. I bought my home as an investment instead of paying rent to someone else.
The best advice I can give you is to have your friend seek some guidance from an attorney. She can often times get free consultations. She needs to be aware that there are some lawyers who will tell you what you want to hear (not what is most likely going to happen) just to get her to sign a contract. There are also lawyers who will try to create more drama in the divorce just to get a larger pay check.
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Miranda
Carpal \'Tunnel
Reged: 06/02/05
Posts: 20822
Loc: North of Mexico
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I guess I'd be a bit miffed if my husband's girlfriend was on the internet asking questions about MY inheritance.
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13.1...because I am only half crazy!
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Renee
Carpal \'Tunnel
Reged: 06/02/05
Posts: 4022
Loc: The Palmetto State
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Thats not the Husbands GF. Its the Wifes BF.
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mitche
recently joined
Reged: 07/03/07
Posts: 14
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Thanks for clearing that up for me, Renee. Miranda doesn't appear to read too closely. I'm the BF, although the STBX Wife is using this logon as well. Maybe we should go on Maury, or something....hehe
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