“If a Deed of Trust reflects “Jane Doe, a married woman, as her sole and separate property”, what are the spouse’s rights, if the property is located in a community property state and there has been no divorce of the married woman, prior to sale of this property.”

It depends entirely on an assortment of facts, as well as on the rules of the state itself. For example, in some community property states, if that were the only mention of the property being separate, and if the property was acquired with community assets, that form of deeding would not be enough to make the property be considered separate property. Some states want a clearer statement, signed by the adversely affected spouse (i.e. Jane’s husband), making it clear that the community and the spouse have knowingly given up their right to the property.

In addition, the character of the property or assets used to acquire the property now deeded to Jane as her separate property can play a role. Did she use her own separate property, acquired before the marriage, to acquire the property in question? Or did she use community property?

Unless the current property is very clearly, and genuinely, Jane’s separate property, her spouse may have some claim against her, and even against whomever purchased it from her.

Recommended reading (click on the picture for details):
Community Property in a Nutshell (Nutshell Series)


Anne P. Mitchell, Esq. is a noted family law expert, Internet law expert, and Professor of Law at Lincoln Law School of San Jose. Contact This Author

State laws vary, and the above is intended as general advice, and not direct legal advice regarding any one particular situation in any one state. For direct personal legal advice related to your own situation you should consult an attorney familiar with the laws of your state and with your situation.