(a) The probate homestead shall be selected out of the following property, giving first preference to the community and quasi-community property of, or property owned in common by, the decedent and the person entitled to have the homestead set apart:

(1) If the homestead is set apart for the use of the surviving spouse or for the use of the surviving spouse and minor children, out of community property or quasi-community property.

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Terms Used In California Probate Code 6522

  • Community property: means :

    California Probate Code 28

  • Decedent: A deceased person.
  • Intestate: Dying without leaving a will.
  • Person: means an individual, corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership, limited liability company, association, or other entity. See California Probate Code 56
  • Probate: Proving a will
  • Probate homestead: means a homestead provided for in Chapter 3 (commencing with Section 6520) of Part 3 of Division 6. See California Probate Code 60
  • Property: means anything that may be the subject of ownership and includes both real and personal property and any interest therein. See California Probate Code 62
  • Quasi-community property: means the following property, other than community property as defined in Section 28:

    California Probate Code 66

  • Spouse: includes domestic partner, as defined in Section 37 of this code, as required by §. See California Probate Code 72
  • Testate: To die leaving a will.

(2) If the homestead is set apart for the use of the surviving spouse or for the use of the minor children or for the use of the surviving spouse and minor children, out of property owned in common by the decedent and the persons entitled to have the homestead set apart, or out of the separate property of the decedent or, if the decedent was not married at the time of death, out of property owned by the decedent.

(b) The probate homestead shall not be selected out of property the right to possession of which is vested in a third person unless the third person consents thereto. As used in this subdivision, “third person” means a person whose right to possession of the property (1) existed at the time of the death of the decedent or came into existence upon the death of the decedent and (2) was not created by testate or intestate succession from the decedent.

(Amended by Stats. 1990, Ch. 710, Sec. 17. Operative July 1, 1991, by Sec. 48 of Ch. 710.)

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