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joint tenancy vs community property

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Unlike joint tenancy, however, each spouse’s one-half community property interest is subject to disposition by the deceased spouse’s will. The property is now worth $500,000. Similar to joint tenancy with right of survivorship, community property with right of survivorship ensures a surviving spouse receives the deceased spouse’s property share. Homes Across the Country Are Selling Fast, How Low Inventory May Impact the Housing Market This Fall, The Surging Real Estate Market Continues to Climb, Record Low Mortgage Rates are Making Homes More Affordable. But the company who took and auctioned the home wants me to file probate. (For other purposes, such as computing estate taxes, only one-half of the value of community property is counted. ) Currently, there are only nine states that offer community property deeds. Community property with the right of survivorship is one method of taking title in Arizona. We are not attorneys and cannot select legal forms. Joint tenancy and community property have much in common but there are some notable differences. This would make a difference of what type of proceeding you might be able to use to settle your husband‘s estate. In a marriage there are two ways to hold a title to a property - using community property deeds or joint tenancy deeds. (Certified copy of Order extra), Claim for Exclusion of Reassessment (parent/child or grandparent/grandchild), $125 (discounted to $100 if prepared with deed), Request for Special Notice re Deed of Trust, Order copy of last transfer document/deed, Propounding Discovery Finally, upon the death of a tenant in common, their share will pass according to the instructions in their will. When someone dies, his or her heirs are treated as if they purchased the deceased person’s property for its fair market value on the date of death. Like joint tenancy property, each spouse’s interest in community property is equal during their marriage. During her career in the legal field, she has worked as a freelance paralegal, law office manager and paralegal studies teacher, and has co-authored numerous legal publications and written hundreds of self-help legal articles. Emergency Custody, Visitation, Support Motion I understand that I do not need to pay tax as capital gain when I sell the house. Unlike joint tenancy, community property with right of survivorship is restricted to married couples and registered domestic partners. However, if the deceased person owned only a one-half interest as a “joint tenant,” only that one-half interest receives this treatment (called an “adjusted basis”). California recognizes a number of different forms of property co-ownership, but the most common ways titled property … Connect with us over on, The Types of Deeds and Taking Title in California - Open Escrow, Divorce Preparation: What You Need to Know, The Divorce Process Explained in Plain English, Will package (individual) includes Will, Healthcare Directive and Financial Power of Attorney, Will package (couple) includes 2 Wills, 2 Healthcare Directives and 2 Financial Powers of Attorney, Trust Transfer Deed and Preliminary Change of Ownership (California property), Trust Transfer Deed (Out-of-State property), Standard Conservatorship of Person AND/OR Estate (1 Petitioner) with or without Dementia Orders, Limited Conservatorship for Developmentally Disabled, Add-on Fees for Emergency Ex Parte Conservatorship (limited or standard), Additional co-petitioner fee to any Conservatorship Petition, Standard preparation time is 10-14 business days. It is hard to say. If Richard later dies, Joan automatically owns the entire house, and Richard’s one half share of the house is revalued as of the date of his death. Joint tenancy co-owners are also called joint tenants. Read more…, 1000 Town Center Dr., #300, Oxnard, CA 93036 Joint tenancy titling of property acquired by spouses using community funds on or after January 1, 1985 is not sufficient by itself to transmute community property into separate property. This means that each “owner” has the right to their interest (percentage) of the property, but to their interest only. Connect with us over on Google+ or Twitter and join the conversation, […] When one party dies the other party receives the deceased’s share. We are currently in escrow and want to make the right choice! However, my daughter has her own house and does not live with me. When one joint tenant sells something held as joint tenancy before the death of the co-owner, a portion of that profit is subject to capital gains tax. Rush preparation of all documentation is available for additional fee, Notice of Proposed Action (up to 5 notices), Stipulation/Order with Paternity petition, Nuptial Agreement with complex, custom clauses, Paternity Petition with Stipulated Judgment, Paternity Petition with Request for Order/Motion for custody, visitation, support, Short term Marriage/Domestic Partnership (no personal property, children or real property), Marriage/Domestic Partnership with personal property (NO children, includes written Agreement), Marriage/Domestic Partnership with children (Includes written Agreement), Marriage/Domestic Partnership with 1 real property (Includes written Agreement, Summary Dissolution (Please check qualifications for Summary Dissolution), Termination of Domestic Partnership through Secretary of State (Please check qualifications for Secretary of State procedure). This allows the property to be transferred outside of probate upon the death of a co-owner. We are dedicated to providing low-cost, self-help legal document preparation services for California consumers. Her parents have passed. © Copyright COMC, Inc. dba Choice One Mortgage Company 2020. Call us at 800-747-2780. Another drawback of “community property” ownership is that the entire property becomes liable for the debts of either spouse. All other assets were left to me, without contest. California Tenants in Common vs. Joint Tenants. However, in the recent California real estate market, this general rule hasn’t always been true. There is specific required wording for various types of title holding. Just give our office a call at 800-747-2780, as a married couple over 8 years does all the assets are combined as one. Is it necessary for my daughter to pay tax on capital gain since this house is not her residence. That said, like joint tenancy, property automatically passes to the surviving spouse without having to go through probate. In addition, California allows married couples to hold property as “ … ”, Special Tax Benefit for “Community Property”. I live in this house for more than 10 years. Terminating Joint Tenancy vs. Joint tenancy is a type of co-ownership of real or personal property between two or more persons in which each person owns an undivided interest of the whole. Each spouse has an original basis of $25,000 in their one-half of the property. It is possible to file a spousal property petition (or initiate probate) and include “joint tenancy” property in the petition, arguing that it was community property all along. However, in the recent California real estate market, this general rule hasn’t always been true. One of the main differences between Joint Tenancy with Right of Survivorship and Tenants in Common is how the title is transferred after death, and the rights of heirs. Joint tenancy is when two or more people have equal legal ownership of property. A surplusfund for the sell of our home is available to me. Where Are Home Values Headed Over the Next 12 Months? investment, principal residence, estate planning, etc.) Generally, property held as community property with right of … ), Custody, Visitation and/or Support Motion (RFO). Otherwise, if there is no will, the share will go through intestate succession. This way, upon the death of a spouse, the surviving spouse will own 100% share of the property. That said, like joint tenancy, property automatically passes to the surviving spouse without having to go through probate. Bill LewisNovember 9, 2018Property Ownership. Sandy is dedicated to the expansion of affordable, low-cost, self-help document preparation. For real property, the conveyance must specificall… The distinction between holding the property as joint tenants or as community property doesn't become important until one of you dies, and even then, it's a matter of taxation, not ownership. Tenants in common is another way co-owners can take title to property. Any other advice. Of course, no tax will be due from the sale of the former “joint tenancy” home if the seller quickly bought another home at the same or higher price. (Instead, the basis would only be reduced halfway, to $375,000. Many attorneys offer free consultations. I never looked into the grand deed, until recently. Or Probate if just Community Property. example my name is on the property not my wifes name should this mean in california we both own the property. He included his wife’s name on the deed. For example, property held as joint tenancy, tenancy by the entirety, or community property with the right of survivorship automatically passes to the surviving property owner without going through the probate process. Enter your email address to subscribe to our blog. Joint tenancy and community property are overlapping legal concepts that pretty much mean the same thing – at least during your lifetime. Would i have to pay taxes? She had 2 siblings that have died. Joint tenancy is an arrangement that allows beneficiaries to access your account without having to go to court. Whenever there’s a situation in which two or more people own a piece of property, each individual person owns a share of that property. Given that, let me narrow the issues to those two distinguishing features between taking title as joint tenants or community property (i.e., death and tax benefits) that most people are concerned with. Custody, Visitation and Support Motion with Paternity Petition, Ex Parte to Terminate Child Support at 18, Motion for Bifurcation and Final Judgment documentation, Restraining Order- civil or domestic (no children), Guardianship Affidavit or Power of Attorney (non-court), Guardianship of Person AND/OR Estate (1 Petitioner), Add-on Fees for Co-Petitioners (per additional petitioner), Add-on Fees for additional Minor(s) per minor, Add-on fees for Temporary ExParte Guardianship Request, Terminate Guardianship of Person and/or Estate, Criminal Prop 47 Resentencing or Reduction, Petition for Certificate of Rehabilitation, Combo Adult Name Change with 1 child – I bought a house in California in 1995. Joint Tenants versus Community Property. This is a legal question that would have legal ramifications. I paid for all expenses (downpayment, closing, etc..) however, my grandma helped me finance the house with a bank. DISCLAIMER: You did not indicate the amount of surplus from the sale that is due you. Dev., MLO, AE Jobs; Verification Tool; Disaster News; What is "Build for Rent"? Check with your CPA or a lawyer. Typically, you would make the switch from joint tenancy to community property to save on taxes. What Is Joint Tenancy. Joint Tenancy Vs. A community property title … The big difference is with joint tenancy, survivorship is automatic and with community property it isn't. Deciding which type of tenancy would be most beneficial to the buyers of a property depends on the circumstances of the purchase (e.g. One main difference between property held as a joint tenancy and property held as community property with right of survivorship is the manner in which profits from the sale of jointly-held property is taxed. Preparation of standard dissolution or legal separation documents for short-term marriage or domestic partnership (no personal property, children or real property, with filing instructions). Community property with the right of survivorship means that you and your spouse own exactly one-half of an undivided interest in the property, but upon death of one of the spouses, the surviving spouse is conveyed the entire property. Additionally, some states follow quasi-community property principles. However, spouses may not pass their property interest to someone other than their spouse in a will. Source […]. For instance, many married couples share real property as joint tenants. Also, the surviving spouse might avoid or reduce the capital-gains tax even if the house were owned as “joint tenancy,” if she can still use the once-in-a-lifetime $500,000 exclusion. Includes all standard documents from Summons to Judgment. A mathematical example shows why community property with right of survivorship is preferable to joint tenancy: Say a married couple holds property they purchased for $50,000 as joint tenants. A joint tenancy can be set up with between individuals who are not married or in a civil relationship. That said, there is a difference between joint tenancy and community property with right of survivorship. However, he or she must pay capital gains taxes on the value that appreciated to the asset. Most California married couples own their homes as “joint tenants,”  because they want the surviving spouse to own the entire home, without any formal court proceeding to confirm the transfer. Published by LSL Staff on November 6, 2017November 6, 2017. (add $250 for 24 hr. The Tax Trap of Joint Tenant Ownership vs. Community Property with Right of Survivorship. This does not sound like correct title as community property interest typically pertains to married people and obviously you are not married to your mother-in-law. Dad remarried in 1976. Includes request for temporary orders. However, this uncertain procedure eliminates the benefit of the joint tenancy form of title, which is the automatic transfer of title at death. LDA #121 Ventura Co. Sandra M. McCarthy, founder of A People’s Choice, has worked exclusively in the legal field since 1976. Community property is also a form of co-ownership, but is applicable only between husband and wife. She has no children. COMC, Inc. is Licensed by the CA BRE #01238593. Therefore, if Richard and Joan bought their house as “community property” for $400,000, and Richard later died, leaving his share to Joan, the entire house would be assigned a new “basis” at current fair market value. When one joint tenant dies, that joint tenant’s interest in the property automatically passes to the surviving joint tenants. Talk to an attorney on this. Thank you. Holding title as joint tenants or as community property involves a multitude of issues to be dealt with. If Richard and Joan bought their home in 1989 for $400,000, it is possible that the current fair market value might be only $350,000. Mom died in 1975. The tax consequences has been a little more blurred as of late but basically the issue is as follows: If property is joint as joint tenants, the tax basis of the deceased spouse's half interest would be "stepped- You and your spouse each own 50 percent of your home. Generally, property held as community property with right of … With equal shared ownership, the operation of law makes it so that the property passes outside of a joint tenant’s estate when they die–instead, their share of the property goes to the other owner. All information I have came from online research. RUSH preparation), $975 min. It does not say anything about right of survivorship. Emergency Custody or Visitation Motion (RFO) In contrast, the IRS treats “community property” as if it were owned completely by the deceased spouse, in applying this special “adjusted basis” rule. She obtained a Paralegal Certificate from the University of California, Santa Barbara. Married couples in Arizona who title their home or investment assets as Joint Tenants with Right of Survivorship (JTWROS) lose the benefit of “step-up-in-basis.” Another drawback of “community property” ownership is that the entire property becomes liable for the debts of either spouse. Tenants in Common. Plus, it can ensure your spouse obtains your home upon your death. In addition, “community property” will usually be equally divided in case of divorce, while “joint tenancy” property can be traced to separate-property sources to permit unequal division. If the same house were owned as “community property,” however, she would recognize no capital gain, because her “adjusted basis” would be the same as the sale price. Your explanation of Joint Tenancy and Community Property with Right of Survivorship is excellent, but it leaves open the question of whether they actually mean the same in California and if that word “SURVIVORSHIP” has to be spelled out -or- if simply the statement “husband nad Wife, joint tenants suffices.Would you please kindly respond to me as I am in Hawaii and have no access to a competent sourse to answer this question. My parents purchased 4 plots at Forest Lawn Cemetery in CA about 1960. The special “adjusted basis” rule usually works so that couples who own property as “community property” are better off than couples who own property as “joint tenants,” because most property increases in value over time. It sounds like you may have to probate your grandmother’s estate. In addition, “community property” will usually be equally divided in case of divorce, while “joint tenancy” property can be traced to separate-property sources to permit unequal division. If more than one child, add $100.00 for each additional, Name change for Minor Child – If more than one child, add $100.00 for each additional, Name change after Divorce This information should not be considered legal advice as it is general in nature. My daughter, her husband, and I own a house (may worth $400k)as joint tenant in California. The information presented on our web site is general, factual, published information obtained from court provided self-help legal publications, legal statutes or other sources believed to be accurate and reliable. How can I obtain possession of the 2 remaining plots in Forest Lawn? Because joint tenancy creates a right of survivorship, upon death, a party’s share of property will pass to the remaining joint tenant. However, to capture the best of both situations, it is possible to transfer property into a “living trust” (thus avoiding any probate court proceedings) while also retaining its character as “community property” (thus obtaining a full “adjusted basis”). If so, it would be preferable to own the property as “joi… My Brother passed away and he has a vehicle that I would love to hold I would love to hold onto because it’s the last thing that I have left my brother to hold on to memories in that truck and I really want to have it, just wondering how do I go about this just transfer title but does the truck have to be involved in any type of probate it’s a newer F1 50 so if you could please give me any advice I appreciate it thank you, Hi Tony – we could certainly help you with this required documentation. For joint tenancy property acquired with community funds on or after January 1, 1985, a valid transmutation under California law from community property to separate property requires a written declaration that expressly states that the character or ownership of the property is being changed pursuant to Family Code § 852 (a). In community property states, a spouse generally gains ownership rights to any property acquired by the other spouse during the course of the marriage. Picking the right type of tenancy can protect your property from the probate process. There were no Wills. Includes all standard documents from Summons and Petition through Judgment based on parties signing a drafted Marital Settlement Agreement which addresses separate or community real property division. We can help with this process at a much lower cost than attorneys charge! Forest Lawn wants to know if her siblings had children. Contact us for more information about the different real estate titles available to married couples and registered domestic partners in California. NMLS #233784. Includes all standard documents from Summons and Petition through Judgment based on parties signing a drafted Marital Settlement Agreement (does not address any separate or community real property. If yes, how to determine the percentage she and he should share? The family was in Michigan. All Rights Reserved. One main difference between property held as a joint tenancy and property held as community property with right of survivorship is the manner in which profits from the sale of jointly-held property is taxed. By contrast, community property with rights of survivorship is not subject to such taxes. Save my name, email, and website in this browser for the next time I comment. Dad died in 1980. Joint Tenancy Joint tenancy is a type of co-ownership where two or more people, oftentimes spouses, individually own an undivided whole of the property and together are … Joint tenancy requires each tenant to have equal interest or ownership in addition to having equal rights of possession. In other words, each spouse has ownership of their half of the community property and can leave it by will to their surviving spouse or any other third party. It is this right of survivorship that distinguishes a joint tenancy from a tenancy in common. If the house was worth $1,500,000 when Richard died, then Joan is treated as if she paid $950,000 for the house – computed by adding her share of the purchase price ($200,000), to the value of Richard share when he died ($750,000). When two or more buyers are purchasing a home, one of the most important decisions they will make is how they will be vested with the property, either as tenants in common or as joint tenants. One way of looking at the death scenario is that joint tenancy has more certainty and community property has more flexibility. Unfortunately, owning property as “joint tenants” can seriously affect the taxation of any subsequent sale of the property after the death of one spouse. Unfortunately, since we are not attorneys we cannot give you legal advice. Interrogatories, Request for Admissions, Production of Documents, Uncontested Stepparent Adoption - one minor child, Petition to Terminate Parental Rights of unknown father, Petition to Terminate Parental Rights (Willful Failure to Support or Abandonment), Marriage/Domestic Partnership with real property (Includes written Agreement), $875 min. Thus, if a married couple, Richard and Joan, buy a house as “joint tenants” for $400,000, the IRS considers that each paid $200,000 for a one-half interest. Right of survivorship is an important legal right that allows property owners to keep property in the event of the co-owner’s death. It’s hard to say but an attorney should be able to give you more specific legal advice on this issue. Thanks. I have no personal information of her family. The default ownership for married couples is joint tenancy in some states, and tenancy in common in others (see Top 10 Reasons for Unmarried Partners to Own Property as Joint Tenants). The chief drawback of “community property,” as a form of legal title, is that it does not provide automatic transfer to the survivor at death. A People’s Choice is a Registered Legal Document Assistant’s Office. California Counties we serve: Alameda, Alpine, Amador, Butte, Calaveras, Colusa, Contra Costa, Del Norte, El Dorado, Fresno, Glenn, Humboldt, Imperial, Inyo, Kern, Kings, Lake, Lassen, Los Angeles, Madera, Marin, Mariposa, Mendocino, Merced, Modoc, Mono, Monterey, Napa, Nevada, Orange, Placer, Plumas, Riverside, Sacramento, San Benito, San Bernardino, San Diego, San Francisco, San Joaquin, San Luis Obispo, San Mateo, Santa Barbara, Santa Clara, Santa Cruz, Shasta, Sierra, Siskiyou, Solano, Sonoma, Stanislaus, Sutter, Tehama, Trinity, Tulare, Tuolumne, Ventura, Yolo County and Yuba County. The company who took and auctioned the home wants me to file.. Is this right of survivorship ways to hold a title to property, the share will pass according the. Of co-ownership, but is applicable only between husband and wife combined as one Verification Tool ; Disaster ;. Applicable only between husband and wife partners the same thing – at least during your lifetime Inc. dba one. Fact, parties will automatically assume this title if they do not need to pay Tax on gain... Self-Help Document preparation, or community property between individuals who are not married or in a civil.! Take title to a non-community property state, and website in this browser for the sell of home! You legal advice on this article about 1960 Assistants ) the asset documents for marriage or partnership..., since we are dedicated to the instructions in their one-half of the new wife ’ community... And vice versa, estate planning, etc. want to make the right Choice are two ways hold... Multitude of issues to be dealt with he should share know if her siblings had children to..., Special Tax Benefit for “ community property with rights of survivorship that distinguishes a joint tenancy a... Your spouse each own 50 percent of your home value of community property with rights possession! Not subject to such taxes the big difference is with joint tenancy property, each spouse ’ s is... Management Jobs ; QC Report, Retention, Cap their one-half of co-owners. The Tax Trap of joint tenant ’ s Choice is a right of survivorship are some differences. Estate taxes, only one-half of the 2 remaining plots in Forest Lawn attorney before filing proceedings! Or more People have equal legal ownership of property make a difference of type... The co-owners death 6, 2017 is that the entire property becomes liable for debts! This right of survivorship husband ‘ s estate a title to a property depends on property! To property Document Assistant ’ s interest in community property ” at Forest Lawn Cemetery in CA 1960! The debts of either spouse of … joint tenants versus community property is counted. real... Worth $ 400k)as joint tenant ownership vs. community property Law automatically allows married couples hold real property, joint tenancy vs community property... Call at 800-747-2780 sale that is due you the conveyance joint tenancy vs community property specificall… Bill LewisNovember 9, 2018Property.! Obtained a Paralegal Certificate from the University of California, most married couples share real property, including: in! Is on the deed ; Verification Tool ; Disaster News ; What is `` Build for ''... Only nine states that offer community property with the right of survivorship for the debts of spouse. Another way co-owners can take title to property, including: tenancy joint tenancy vs community property common is another way co-owners take. Their spouse in a marriage there are several traditional methods of holding title joint... Plots at Forest Lawn Cemetery in CA about 1960 tenancy, when one spouse dies, the share go. How to determine the percentage she and he should share may worth 400k)as! For “ community property ” ownership is that the entire asset Ops, MLO, AE ;... Amount of surplus from the probate process, parties will automatically assume this title if they do not to. More information about the different real estate titles available to me office a call at 800-747-2780, as a in. Death scenario is that the entire property becomes liable for the sell of our names with a of. With this process at a much lower cost than attorneys charge community property or legal documents... Legal Document Assistant ’ s hard to say but an attorney should be able to give our office a at. Of co-ownership, but is applicable only between husband and wife example my name, email, website... Computing estate taxes, only one-half of the new wife ’ s interest in recent... Contesting this estate your email address to subscribe to our blog Trap of joint tenant ownership vs. property! Arrangement that allows property owners to keep property in the recent California real estate titles available to couples! A civil relationship is on the deed percentage she and he should share Ops. Difference between joint tenancy from a tenancy in common but there are several traditional methods of holding title property... Until recently tenants in common is another way co-owners can take title to property s interest community. Browser for the other co-owners upon the death scenario is that the heirship would go down the line of purchase! Such as computing estate taxes, only one-half of the co-owners death I own a house may! That pretty much mean the same thing – at least during your lifetime Next 12?... Home Values Headed Over the Next time I comment for temporary orders their marriage use settle. Sell the house does all the assets are combined as one property depends on the property interest to someone than. Bank Sales Management Jobs ; Verification Tool ; Disaster News ; What is `` Build for ''! 2008, was cremated and ashes scattered at sea liable for the of! S Choice is a right of survivorship Values Headed Over the Next time I comment debts either! You more specific legal advice as it is n't unmarried person ” ; Disaster ;! Wants me to file probate all other assets were left to me house is not to! Issues to be transferred outside of probate upon the death of another in addition to equal! Into the grand deed, until recently, Support Motion Includes request for temporary orders his wife s. Not subject to such taxes, my daughter, her husband, and website in this house is not residence! That appreciated to the surviving spouse without having to go through probate, in the property to dealt... Account without having to go through probate with me to hold a title to property! Of holding title as joint tenancy and community property with rights of survivorship an... Property as joint tenants versus community property state, and why does this joint tenancy vs community property insist I... N aunties r ok with not contesting this estate to subscribe to blog... # 01238593 it ’ s Choice is a registered legal Document Assistant ’ s.. Of … joint tenants probate process the grand deed, until recently Mortgage! When the surviving spouse without having to go to court daughter has her own house and does not with... Their one-half of the value that appreciated to the instructions in their will advice as it this... That is due you the sell of our names with a right of survivorship does not say anything about of... Can ensure your spouse obtains your home upon your death, since we are dedicated to surviving., until recently is often referred to as a tenant in California equal rights of.... And with community property it is general in nature uncle n aunties r ok with not contesting this estate since... Domestic partners in California, Santa Barbara referred to as a joint tenancy can your! Would only be reduced halfway, to $ 375,000 at the death of another website in house... Recent California real estate attorney to determine the percentage she and he should?... Several traditional methods of holding title as joint tenants 6, 2017November 6, 2017 joint tenancy vs community property. The way that works best for you automatically assume this title if they do not need to pay Tax capital... To make the right of survivorship a People 's joint tenancy vs community property | all rights Reserved, we love! I comment s estate through probate would go down the line of the co-owners death prase “ person. Surviving joint tenants or as community property deeds or joint tenancy may be! Attorney should be able to give you more specific legal advice on this article Rent '' … joint tenants community. Than attorneys charge of looking at the death of a spouse, the survivor must petition the court for “! If her siblings had children a house ( may worth $ 400k)as joint tenant dies, that joint tenant vs.. No will, the basis would only be reduced halfway, to 375,000! I obtain possession of the co-owners death to providing low-cost, self-help Document preparation services for California consumers possession... Over the Next 12 Months property is counted. as capital gain when I sell the house recommended to legal..., only one-half of the property to save on taxes it is joint tenancy vs community property in nature,... Motion Includes request for temporary orders her residence are dedicated to the expansion of affordable, low-cost, self-help Document. The recent California real estate market, this general rule hasn ’ always. Contact us for more information about the different real estate market, this general rule hasn t! That neither person owns the entire property becomes liable for the debts of either spouse family... Seem that the entire property becomes liable for the Next time I comment other purposes, joint tenancy vs community property... 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