Separate Property
Property owned by one spouse individually — typically property owned before the marriage, plus gifts and inheritances received during the marriage.
Separate property generally includes (1) anything either spouse owned before the marriage, (2) gifts received during the marriage from third parties, and (3) inheritances received during the marriage. In every US state, separate property is not subject to division at divorce — in theory.
In practice, separate property loses that status fast through commingling. Depositing inheritance into a joint account, using separate funds to renovate a jointly-owned home, or paying down a marital mortgage with separate funds can convert all or part of the separate property to marital. A prenup helps lock in separate-property treatment by spelling out what counts and how commingling is treated.
Related terms
- Marital Property — Property acquired by either spouse during the marriage, subject to division at divorce — either equally (in community-property states) or equitably (in the rest).
- Commingling — Mixing separate property with marital property in a way that makes them indistinguishable — often resulting in the separate property being treated as marital.
- Community Property — A marital property system used in 9 US states under which property and earnings acquired during marriage are jointly owned and divided equally on divorce, absent a prenup.
- Tracing — The process of proving that a specific asset originated from a spouse's separate property, even after commingling — used to preserve separate-property status.
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