Defining "community" property versus "separate" property

In California, the default assumption is that assets accumulated during your marriage are "community property" (belonging to both husband and wife). What about assets accumulated BEFORE marriage? What about assets that are inherited by a spouse or gifted to a spouse? 

Depending on the marriage and larger family dynamics, it may be helpful to agree in writing what assets are considered "community" and what assets are considered "separate," if any. This may be especially important in "blended families" where there are children from previous relationships.

In some cases, one spouse or another may wish to keep certain property "separate" from the other spouse.  That doesn't mean they want to "hide" the assets, but perhaps they want that particular asset to stay on "their side" of the family or perhaps to make sure that asset goes to one or more beneficiaries upon the first or second death.   If the surviving spouse considers an asset to be "community," they may try to take control over that asset.   They might give it to someone else, liquidate it, or worse...squander it.

Recently, one of my clients inherited real property from her mother.  She didn't want her husband squandering that asset and wanted control over its ultimate distribution.  In that case, I told her she could call it "separate" property all day, but that didn't mean her husband would agree to that and would not challenge that at some point (Property inherited or gifted to you is your separate property but that isn't always iron-clad, especially over time). However, in her case, he was willing to come into the office and sign an agreement indicating that he considered that particular asset to be her separate property.  That way, she could more easily make sure that asset stayed on her side of the family.  She wanted the asset to go to her children but couldn't be sure her husband would do so if he considered the asset to be "community" in nature. 

In another case I had, two people were widowed and getting married to each other late in life.  Their respective families were very nervous that each would divest the other of their assets, either purposefully or inadvertently.  Therefore, we designed an agreement that basically says "what's his is his," and "what's hers is hers."  They agreed to never assert community property ownership over the other's assets.  That way, each person could fully control the distribution of any assets that were in his/her name or in the name of their respective living trust.  

While discussing these issues can be uncomfortable and perhaps awkward at times, doing so can really help prevent problems in the family later on.  If you wish to discuss your estate plan, please call my office for an appointment.  The number is (661) 414-7100.