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Helene L. Taylor

California Family Law Consulting Attorney & Legal Strategist

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Are gifts or inheritance separate property in California?

Helene L Taylor

separate property inheritance

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 separate property under California law?

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)

A separate property gift or inheritance remains separate property provided the following are true.

  1. 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))

2. The spouse who received the inheritance or gift (or has other separate property) did not sign any documents explicitly declaring that he/she was 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))

3. No community property funds were used to pay the principal of a loan on, or to make improvements that increase the equity in the separate property (Marriage of Marsden (1982) 130 CA3d 426, Marriage of Moore (1980) 28 C3d 366, Marriage of Weaver (2005) 127 CA4th 858, 871) If community property funds were used, the community may have acquired an interest in the separate property. The method for calculating a community property interest is referred to as the Moore-Marsden formula.

Use these facts to determine if a gift or inheritance is a separate property asset:

  1. The date the inheritance or gift was received
  2. The date of marriage
  3. The date of separation
  4. Documents that include an express declaration changing the legal character of the gift or inheritance from separate to community property
  5. Evidence that community property funds were used to pay the principal of a mortgage on the separate property or to make improvements that increased the equity in the separate property

Evidence to prove a gift or inheritance is separate property includes, but isn’t limited to:

  • Income tax returns
  • Gift receipts
  • Estate planning documents
  • Correspondence
  • Financial statements
  • Prenuptial or post-nuptial agreements
  • Deeds

If you’d like my help determining if a gift or inheritance is separate property in California, please schedule a consulting session now.

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Blog, California Family Law, Manage, Property community property, gift, inheritance, separate property

Helene L Taylor

Helene L. Taylor, California Family Law Consulting Attorney, Legal Strategist, Peace Activist

It’s easy to see divorce as a painful path you must walk alone without the expertise of a lawyer because you don’t know who to trust. But compassionate competent  advice is available and empowers you to solve salient problems consciously.

I’m Helene L. Taylor. I’m a former San Francisco trial lawyer who has, for 27 years, worked with the most formidable attorneys, judges, and experts in Hawaii and California. I’ve helped over a thousand people mediate, litigate, and resolve contentious complex divorce issues in Marin, OC, Contra Costa, San Mateo, Napa, LA, Silicon Valley, and beyond. I’m also divorced.

If you want trustworthy legal advice and strategies you can use to navigate the legal system and negotiate settlement agreements, Speak to Me.

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"Helene understands human behavior, and has a gift for deescalating conflict. I felt safe with Helene representing me during a complicated divorce. We've been friends ever since my divorce sixteen years ago." ~Toni Wroolie, PhD, Clinical Associate Professor, Psychiatry, Stanford University Medicine

"When I realized that I was getting a divorce I knew I needed to find a guide. She’d need to be smart, soulful, kind, and know her way around the legal system like nobody’s business. I loved working with Helene because she covered all of those bases beautifully, and she made it possible for me to move through my divorce with peace of mind and confidence" ~Laurie Wagner, 27powers.org

"Helene gently challenged me to consider which outcome would be best for my daughter and I, and gave me the courage and consistency I needed to pursue it successfully. I learned so much about myself as a result. Helene's is a compassionate and strategic approach. On a personal level, Helene is exceptionally positive and inspiring. I feel blessed to have received Helene's help through a challenging divorce during the pandemic." ~NC, Mother, Los Angeles Small Business Owner
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