If you’re getting a divorce and you or your spouse received a gift of value, you may be wondering if it is considered community (marital) or separate property (belonging to one spouse alone and not subject to division in a divorce). The answer is not black and white because it depends.
California is a community property state, which means that all income and assets acquired during the marriage are generally considered to be community property. Separate property is not usually subject to division unless a prenuptial or postnuptial agreement says otherwise. Now, the question is, what is separate property?
Separate property generally includes:
Property acquired before the marriage
Income earned before the marriage
Gifts received by one spouse during the marriage
Inheritances received by one spouse during the marriage
Personal injury awards received by one spouse during the marriage
When ‘Gifts’ Are Comingled with Marital Assets
If a gift is received by one spouse during the marriage, it is considered separate property unless it is comingled with marital property. For example, suppose your mother received an inheritance when your grandmother died and she wants to give each child $10,000 from her inheritance. If you deposit that money into your joint checking account and you pay bills out of it, it would most likely be considered community property because you comingled it with marital assets.
On the other hand, if you deposited the $10,000 check into a separate bank account with only your name on it, it would most likely be considered “separate property” for the sake of the divorce. Please bear in mind that if you ever comingle or mix your separate assets, for example, by depositing funds into a joint bank account, then the separate property can be converted to community property.