You received a significant gift or inheritance while married and living in California post-1975. Now you want to know, is the gift or inheritance a separate property asset under California law?
The gift or inheritance is likely to be separate property if the following are true:
1. One spouse was the intended heir or gift recipient
Property acquired during marriage by gift, will, or inheritance is separate property. (Section 21 of the California Constitution, California Family Code Section 752)
Except as otherwise provided by law, neither spouse has any interest in the separate property of the other. (California Family Code Section 770)
2. The gift or inheritance was not commingled
If separate and community property are commingled in such a manner that “the respective contributions cannot be traced and identified, the entire fund or property—including property acquired in exchange therefor—will be treated as community property. (California Family Code Section 760)
California Family Code Section 852 transmutation requirements don’t affect the law governing characterization of commingled separate and community property. (California Family Code Section 852(d))
A separate property residence can be transmuted into community property if a married couple uses community property to pay the and home make improvements. (Marriage of Weaver (2005) 127 CA4th 858, 871)
3. You and your spouse never signed any documents explicitly changing the legal character of the gift or inheritance from separate to community property
The legal characterization of separate property changes only if the intended heir or recipient expressly declares, joins in, consents to, or accepts the change of character in a signed writing. (California Family Code section 852(a))
You may use these facts to determine if a gift or inheritance is a separate property asset:
The date the inheritance or gift was received
The date of your marriage
The date of your separation
Whether you and your spouse signed any documents explicitly changing the legal character of the gift or inheritance from separate to community property.
You may use these facts to determine if a gift or inheritance is a separate property asset.
Federal personal income tax returns
State personal income tax returns
Bank and brokerage statements
If you’d like my help determining if a gift or inheritance is separate property in California, call Laura at 415-968-3028 or complete the form below and schedule a consulting session.