§ 13621. Transfer Effected by Vesting of Statutory Homestead.

In the case of a homestead of a husband and wife created in accordance with the Civil Code:

(a) Community Property.

If the homestead was selected from community property, upon the death of either spouse the vesting of the homestead in the survivor is subject to the law as a transfer of community property from the decedent to the survivor to the extent that the property is subject to the law. (See Revenue and Taxation Code Section 13554).

(b) Separate Property of Either Spouse.

(1) Such Spouse Joined in Selection.

If the homestead was selected from the separate property of either spouse, and such spouse joined in the selection, upon the death of such spouse the vesting of the homestead in the survivor is subject to the law as a transfer of the separate property of the decedent to the survivor. On the other hand, if the spouse whose separate property was selected should be the survivor, the vesting of the homestead in such spouse would not constitute a transfer subject to the law.

(2) Such Spouse Did Not Join in Selection.

If the homestead was selected from the separate property of either spouse, but such spouse did not join in the selection, upon the death of such spouse the vesting of the homestead in the surviving spouse or any third person is subject to the law as a transfer of the separate property of the decedent. If the property vests in a person other than the surviving spouse or a minor child of the decedent, the probate court may set the homestead apart for the use of the surviving spouse or minor child in accordance with the Probate Code. In such event, the setting apart of the property constitutes a transfer of separate property to the surviving spouse or minor child which is also subject to the law. In the determination of the tax, if any, on the interest vesting in the person other than the surviving spouse or minor child, allowance will be made for the interest passing to the surviving spouse or child as a consequence of the setting apart of the homestead. Should the spouse whose property was selected for the homestead survive his or her spouse, the vesting of the homestead in the former does not constitute a transfer subject to the law.

Note

Note: Reference: Section 13621, Revenue and Taxation Code.