What happens to inheritance during divorce in California?

Divorce rates are on the rise. The Superior Court of California recently reported that divorce filings in the state have been on the rise for the last five months. This goes back to when stay-at-home orders started to ease, and the courts started to operate a bit more normally. Family law experts explain that this should not be a surprise. They elaborate, stating the combination of closed courts making it impossible to begin the divorce process along with the inability to hide from marital problems while on lockdown likely fueled this increase in divorce filings.

As a result, those that find themselves considering divorce may take comfort in the fact that they are not alone.

When thinking about a divorce, it is common to have questions about how the divorce process works and how it impacts finances. One common question is how the process deals with inheritance. The answer will vary depending on the state, but California state law generally considers an inheritance as separate property.

What is separate property?

California state law defines separate property as anything one party owned prior to the marriage. The courts will often consider an inheritance or gift, even when received during the marriage, as separate property. The courts generally consider other assets, like joint accounts, real estate purchased during the marriage and even business assets, as community property.

This is an important distinction because community property is subject to division during divorce while separate property is not.

So is my inheritance divorce-proof?

If you kept it separate from community property, it should be safe from division during divorce. The answer is not as clear if you mixed the inheritance with community property — something the courts refer to as “commingling” the separate and community assets. This can happen in many ways, such as if you use the inheritance to help fund a start-up or purchase property.

Working with legal counsel to advocate for your interests will better help you to make the distinction between separate and community assets and can help to better ensure your inheritance is protected.

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