Thanks for the information.The probate court here would have to decide if this was community or separate property.The presumption if they are married is that it is community rather than separate if divorce was not final and she had not signed away her claim to property.

His one half community and all of his separate passes here through the California laws of intestacy.Here are the laws of intestacy.Only the probate court would be able to decide whether it was community or separate property in this situation.And then the court would proceed through probate appointing a personal representative, paying claims, and then distributing proceeds to the heirs at law.

Laws of intestacy for your reference..

http://www.mystatewill.com/statutes/ca_law.php

Law on community property

FAMILY.CODE
SECTION 802-803
802. The presumption that property acquired during marriage is community property does not apply to any property to which legal or equitable title is held by a person at the time of the person's death if the marriage during which the property was acquired was terminated by dissolution of marriage more than four years before the death.

You would have the right here to argue to the probate judge that the property in dispute is separate but you would have to overcome the presumption set out above.The probate court would decide the matter here as part of administration of the estate.

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