California Family Code § 770 – Separate Property

Overview of Separate Property

California’s Family Code § 770 defines what counts as a married person’s separate property. In simple terms, separate property is anything one spouse owns individually, rather than together with the other spouse. Under § 770, separate property includes:

  • Any property the spouse owned before they got married.
  • Any property the spouse acquires during the marriage by gift, inheritance (bequest or devise), or descent.
  • The rent, income, or other profits generated by any of the above separate property.

All other property acquired during the marriage is presumed community property (jointly owned), unless it falls into one of these separate-property categories. In practical terms, marriage alone does not convert a person’s separate assets into community assets. For example, if a person owned a house before marriage, that house remains their separate property even after they marry. Likewise, if a spouse inherits money from a parent while married, that inheritance is that spouse’s separate property, not community property. (Note that separate property can generally be sold or transferred by the owning spouse without the other spouse’s consent, per subsection (b) of § 770.)

Examples of Separate Property under § 770

  • Pre-marriage asset: Jane owns a condominium before her wedding. The condominium and any income from it (rent, sale proceeds, etc.) are separate property under § 770(a)(1).
  • Gift during marriage: During the marriage, Bob’s aunt gives him a car as a gift. The car is Bob’s separate property under § 770(a)(2) because it was acquired by gift.
  • Inheritance: Carol inherits her parents’ ranch while she is married. The ranch is Carol’s separate property under § 770(a)(2). Any rents or crops (profits) from the ranch are also separate under § 770(a)(3).
  • Separate earnings (after separation): Although not in § 770 itself, Family Code § 771 makes earnings a spouse receives while living apart (after separation) their separate property. For instance, if during a legal separation one spouse works and earns wages, those earnings are separate property under the law.

Key California Court Decisions Interpreting § 770

  • Kircher v. Kircher, 189 Cal.App.4th 1105 (2010): In this published decision, the court explained that under Family Code § 770, property owned by a person before marriage or acquired by gift or inheritance is separate property. The case involved property held by spouses as joint tenants. The court held that even though title was joint, the character of the property (community or separate) must be determined by when and how it was acquired. Here the husband had transmuted separate property into joint tenancy with his wife, so the property was treated as community property for purposes of the surviving spouse’s liability.
  • In re Marriage of Deluca, 57 Cal.App.5th 598 (2020): In this divorce case, the wife appealed the trial court’s ruling about a piece of real estate (the “Florida Street property”). The Court of Appeal noted that § 770(a)(2) makes inheritances separate property, but held that here the husband had bought the property from his sister after a trust settlement. Because he did not receive it as a direct inheritance or devise, it did not qualify as separate property under § 770. Instead, the statutory presumption of community property applied to the property acquisition.
  • In re Marriage of Green, 56 Cal.4th 1130 (2013): The California Supreme Court reiterated that the character of property is fixed at the time of acquisition. It explained that under § 770(a)(1) “property owned by [a] person before marriage” remains that person’s separate property. Thus, if a spouse owned an asset outright before the marriage, it is separate property even after marriage and divorce. (In Green, the court was dividing retirement benefits but emphasized that pre-marriage service credits remained separate property.)

Full Text of California Family Code § 770

770. (a) Separate property of a married person includes all of the following: (1) All property owned by the person before marriage. (2) All property acquired by the person after marriage by gift, bequest, devise, or descent. (3) The rents, issues, and profits of the property described in this section. (b) A married person may, without the consent of the person’s spouse, convey the person’s separate property. (Enacted by Stats. 1992, Ch. 162, Sec. 10. Operative January 1, 1994.)

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