Separate property

What it means

Separate property is the counterpart of community property. Income earned during the marriage is generally community; a gift or inheritance to one spouse generally is not.

Separate property can become community by being mixed with it — a deposit of inherited money into a joint account is the usual example — and untangling that afterwards is difficult.

On a death, the decedent's separate property is entirely theirs to leave, while only half of the community property is.

Why it matters

It changes what is in the estate, and therefore what a will can dispose of and what a surviving spouse already owns.

It also matters for tax: the treatment of a jointly held asset on the first death differs between community and separate property.

When you are likely to meet it

• When a married person dies in a community property state.
• When one spouse inherited money during the marriage.
• When an estate is being valued.

How this varies by state

Only some states are community property states, and what each treats as separate is set by state law.

Related terms

• Community propertyIn some states, most of what a married couple acquires during the marriage belongs to both of them equally, whatever the paperwork says.
• Elective shareA surviving spouse's right to claim a minimum portion of the estate, even if the will leaves them less or nothing.
• EstateEverything the person owned at the moment they died, treated as one thing that has to be settled.
• Step-up in basisThe tax rule that resets an inherited asset's value to what it was worth on the date of death.
• Tenancy in commonCo-ownership where each owner has their own share, and that share passes to their heirs rather than to the other owners.
• UsufructA Louisiana right to use property and take its income, while somebody else owns it.
• ComminglingMixing separate property with shared property so thoroughly that it stops being possible to tell them apart.
• Marital propertyProperty treated as belonging to the marriage rather than to either spouse alone.
• Postnuptial agreementThe same kind of agreement, made by a couple who are already married.
• Prenuptial agreementA written agreement signed before a marriage that changes some of the financial and property rules the marriage would otherwise bring with it.
• Spousal supportMoney one spouse pays the other after a marriage ends. Some states call it alimony, some maintenance.

Sahvelo guidance that uses this

• Do I need probate?