Estate of Dean

Opinion

EVANS, J.

Two questions are presented by this appeal. First, did petitioner’s (hereafter plaintiff) remarriage destroy his right to a probate

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homestead, and second, did the decedent effectively terminate a joint tenancy by conveyances to a third person?

We answer each question affirmatively.

In 1968, plaintiff and his wife purchased a dwelling as joint tenants. On February 7, 1976, Mrs. Dean executed a deed conveying her interest in the property to a third person who reconveyed the interest to Mrs. Dean. No consideration was given for these transactions, which were apparently made for the sole purpose of destroying the joint tenancy. Mr. Dean did not consent to the conveyances nor was he aware of them until after his wife’s death. On February 28, 1976, Mrs. Dean died, leaving her entire estate to the Department of Radiology at Stanford School of Medicine. Mr. Dean remarried on August 8, 1976; following that remarriage he filed an action to quiet title to the real property and a petition for an order setting apart a probate homestead.

The probate court denied plaintiff’s petition to set apart a probate homestead, finding that plaintiff’s remarriage prior to filing the petition precluded it.

In plaintiff’s quiet title action, the court found that whether the Deans held the property as tenants in common or as community property (after the termination of the joint tenancy), the decedent, Mrs. Dean, had the right to devise her half interest in any manner she chose, and entered judgment against plaintiff.

Probate Code section 661 provides that a probate homestead must be set aside for the use of a surviving spouse when a homestead has not previously been set apart.

(Estate of Rosenaur

(1951) 107 Cal.App.2d 461, 462 [237 P.2d 17].) A devise of the deceased spouse’s property is subject to this homestead right of the survivor.

(Estate of Davis

(1948) 86 Cal.App.2d 263, 264-265 [194 P.2d 713].) However, the right to a probate homestead is lost once the surviving spouse loses the status upon which the right was based.