Community vs. Separate Property in California

By the FigureMyTax Editorial Team · How we calculate

In California, property acquired during the marriage while domiciled in the state is community property, and property owned before marriage, received by gift or inheritance, or acquired after separation is separate property. Separate funds traced into community property are generally reimbursed.

Community property

All property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in California is community property, except as otherwise provided by statute (Family Code 760). Wages earned during the marriage are the standard example.

Separate property

Under Family Code 770, separate property of a married person includes all property owned before marriage; all property acquired after marriage by gift, bequest, devise or descent; and the rents, issues and profits of that property. A married person may convey his or her separate property without the spouse’s consent. Property acquired after the date of separation is also separate property.

Examples of how the rules apply

These illustrate the statutes’ wording. A house bought before the wedding is separate property, and so is the rent it produces. An inheritance received during the marriage is separate. A salary earned during the marriage is community. Mixing funds can raise classification and tracing questions that depend on the evidence, so keep records of where money came from.

Reimbursement under Section 2640

If separate funds were used to buy community property, the contributing spouse is reimbursed to the extent the contribution can be traced to a separate source, without interest and not more than the net value of the property, unless there is a written waiver. A spouse who contributes separate property to the other spouse’s separate property during the marriage is also reimbursed unless there was a transmutation in writing or a written waiver (Family Code 2640).

Where this fits in the calculator

The California property division calculator asks for traced contributions and separate property separately, because separate property stays with its owner and reimbursements come out of the community estate before the equal division. The house is covered in the marital home and buyouts.

The date of separation matters

Property acquired after the date of separation is separate property, so the date of separation can change what counts as community. The marriage-to-separation period is also what the spousal support statutes use to measure a marriage of long duration. Keep a record of the date and of the facts that support it, because the date can be disputed; the California spousal support calculator uses the same dates for its duration benchmark.

Tracing separate funds

Tracing means following money from a separate source into an asset with statements and records. Keep the account statements that show where a down payment or deposit came from; commingled accounts are harder to trace, and reimbursement depends on being able to prove the source.

Documents to gather

Keep statements from before the wedding, deeds and closing documents with dates, records of gifts and inheritances, and statements that trace separate money into any community asset. Records that show the source of funds are the best evidence for a classification or reimbursement claim.

Frequently asked questions

Official sources

• Family Code 760: community property
• Family Code 770: separate property
• Family Code 2640: reimbursement

This is general information, not legal advice. It is based on the cited California statutes, rules and court opinions, and every case turns on its own facts. Confirm how the law applies to your situation with a licensed California attorney.