Legal Memorandum: Inheritance and Division of Marital Property

Issue: Treatment of one spouse’s inheritance in the division of the couple’s property incident to a divorce in the Ninth Circuit.

Area of Law: Family Law
Keywords: Division of marital property; Inheritance
Jurisdiction: California, Federal
Cited Cases: 80 N.M. 235; 993 P.2d 887; 947 P.2d 307; 453 P.2d 755; 14 P.3d 272; 496 P.2d 644; 984 P.2d 1272; 760 P.2d 304; 968 P.2d 814; 77 Haw. 202; 881 P.2d 1270
Cited Statutes: Cal. Fam. Code § 770(a), §§ 850, 852
Date: 05/01/2004

In short, Ninth Circuit jurisdictions, as do the vast majority of other U.S. jurisdictions, treat an inheritance or bequest as the separate nonmarital property of the inheriting spouse.  Absent some action by that spouse that transmutes the property into community or marital property, it is generally awarded to the inheriting spouse in its entirety, along with any profits or appreciation.  In some instances, it can be invaded, however, if the equities require some apportionment.


The “separate property of a married person” is defined by statute in California as including “[a]ll property acquired by the person after the marriage by gift, bequest, devise, or descent,” and the “rents, issues, and profits of [that] property.”  Cal. Fam. Code § 770(a) (2003).  While, married persons may by agreement or transfer transmute separate property of either spouse to community property, “[a] transmutation of real or personal property is not valid unless made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected.”  Id. §§ 850, 852.  And if separate property is used to acquire community property, the contributing spouse is entitled to reimbursement to the extent that spouse can trace the contributions to the separate property source.  See In re Marriage of Moore, No. D036953, 2002 WL 1360410 (Cal. Ct. App. June 21, 2002) (unpublished) (husband entitled to reimbursement from wife of inheritance amount invested by husband in community property where it was conceded that inheritance […]

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