family law, Legal

When is a gift a gift? Legal Reasons #53

It is far too often I hear from estranged spouses who speak of partners who have taken back birthday gift, wedding rings or anything during their marriage because they are hurt and/or angry.When you get married, you agree to share more than your feelings and the bathroom — you also share property with your spouse.  California law defines community property as any asset acquired or income earned by a married person while living with a spouse. Separate property is defined as anything acquired by a spouse before the marriage, during the marriage by gift, devise, or bequest, and after the parties separate

Separate property belongs only to one spouse.  The most common forms of separate property are:

  • property one spouse owned before the marriage
  • gifts received by one spouse before or during the marriage

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)

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