Spouses enjoy a unique degree of togetherness in California. It's one of only nine states that observes community property law, where everything acquired during the marriage belongs equally to both spouses. Even community property states draw the line at inheritances received before or while you're married, however.
Under California law, inheritances are the separate property of the spouse who receives them. A wife has no inherent rights to her husband's bequest. The court divides most other assets equally between spouses in a divorce, but inheritances do not have to be shared because they're not marital property. This is the court's presumption unless you do something to change the separate nature of the inheritance, such as commingling or transmutation.
Commingling is the most common way of tainting an inheritance so it's no longer clear to the court whether the asset is yours or if your wife has any claim to it. It involves combining your inheritance with marital income or assets. For example, if you inherit $100,000 and place it in an account in your sole name, it's your separate property and it's safe from distribution in divorce. However, if you and your wife later sell your home and you deposit the proceeds from the sale in this account for safekeeping, you've commingled your separate property with marital money. Commingling can occur from something as seemingly innocent as depositing your paycheck into that account, because in California, income is also community property.
Another way of potentially tainting your separate, inherited asset is through transmutation. Transmutation occurs when you take an action that indicates you want to change the nature of your inheritance from separate property to community property. For example, if you inherit real estate and you place the deed in the joint names of you and your wife, you've transmuted the property. You've done something to make it appear to the court that you intended to make a gift of the inheritance to your marriage. Likewise, if you use some of your cash inheritance to purchase a home or to pay the mortgage on your existing home, you've transmuted that portion of it. Your wife can argue that you made a gift of the money to the marital union.
Burden of Proof
If your wife tries to make a claim to your inheritance because you've done something to commingle or transmute it, you have the burden of proof to convince the court that it's still your separate property. If you commingled the asset, you can try to trace your inheritance from the moment you received it to the present, showing its origin through a will or trust documents, then tracking every event that converted it to marital property. This may require hiring a professional to go over your records and provide a clear paper trail of each instance of when you joined marital money with your inheritance. If you're successful, the court might set aside the original balance, or at least most of what's left, as your separate property. Transmutations that occur by deed are sometimes easier to undo, provided you never signed anything indicating you were intentionally making a gift of the property to your wife or to the marriage.
- Jonnie Herring: Frequently Asked Questions
- The Law Offices of Demetria L. Graves: Inheritance and California Divorce Law
- Law Firm of Thurman W. Arnold III: What Does Tracing Refer to in California Divorce Cases?
- Card Law Firm: Property Division in Divorce – Commingling and Tracing
- Law Firm of Thurman W. Arnold III: What Happens if I Place My Wife's Name on Title to My Home and We Later Divorce?
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