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By: Scott Grossman on May 12th, 2017

Community Property vs. Separate Property

Blended families can present unique challenges as part of the estate administration process. When a decedent dies without leaving behind a will, the property passes according to California’s intestacy statute. The intestacy laws are designed to protect the rights of the decedent’s children when their parent left a spouse from a different relationship. Since interpreting who should receive which share of property can be difficult in blended families, it is vital you understand the difference between Community Property vs. Separate Property.

What is Community Property vs. Separate Property?

When a decedent passes away leaving a spouse as well as children from a different marriage, it is important to distinguish between community property vs. separate property. This is because, if there is no will, community property will usually go entirely to the surviving spouse. Separate property, however, is shared between the spouse and the children. The distinctions between the two types of property are as follows:

  • Community property consists of assets that were acquired during the marriage from earnings or salary.
  • Separate property consists of assets that were brought into the marriage when the decedent got married. It also includes inheritances and gifts made to the decedent.

Despite these definitions, there are many exceptions outlined in California case law. Assets can also change from one type to another in several ways, including:

  • Combining assets together
  • Improving separate property with community property
  • A written agreement between the spouses

In order to prevent costly and lengthy court battles, it is very important to properly distinguish community property vs. separate property during the estate administration process.


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