Wiltrakis v. Wiltrakis

TAYLOR, J.

On this appeal by the wife from a judgment in favor of the husband in his action for partition, the only question presented is whether, after a decree of separate maintenance, the wife is entitled to claim a homestead in the husband’s separate property and thus to bar his action. This

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case is one of first impression under section 1300 of the Civil Code.

The appeal is on a settled statement of the following facts: Before their separation, the parties owned in joint tenancy and resided in a single family dwelling on which no homestead had ever been declared. In January 1964, after a contested trial, the wife received a decree of separate maintenance providing that the home was the community property of the parties and that each had an undivided one-half interest therein as a tenant in common. After the decree became final, the husband filed this action for partition and, pending the trial thereof, the wife recorded a declaration of homestead on the entire property on behalf of herself and her husband.

Under section 1238 of the Civil Code, a declaration of homestead is limited to certain property, depending on the status of the claimant and type of property involved. If the claimant is married and female, she may select the homestead from community property, the separate property of her husband, or from that held by the spouses as tenants in common or in joint tenancy; if she be unmarried but head of a family, she may select it from any of her property. Section 1263, so far as pertinent, provides that when the declaration is made by the wife, it must contain a showing that her husband has not made such a declaration and that she, therefore, makes the declaration for their joint benefit. Section 1300 of the Civil Code provides that following the entry of a decree of separate maintenance or an interlocutory decree of divorce, each spouse may declare a married person’s separate homestead from his or her own separate property or from property awarded to him or her by such decree.

The wife argues that she has an election to proceed under either section 1238 or 1300 et seq. and that as a married female she is still entitled to choose a homestead from the husband’s separate property. We cannot agree with this interpretation of the statutes.