# Separate Property: Definition and How It Works in California

> Separate property is property one spouse owned before marriage, or received by gift or inheritance.

Source: https://ridleylawoffices.com/estate-planning-glossary-california/separate-property/

By Eric Ridley, attorney, Ridley Law. Updated September 2026.

**Separate property** is property one spouse owned before marriage, or received during marriage by gift or inheritance, and it stays that spouse’s alone unless it gets commingled with community funds or transmuted by agreement.

## How it works in California

Ridley Law’s comparison of [community property and separate property](https://ridleylawoffices.com/community-property-step-up-vs-separate-property-california/) covers how each gets taxed at death. California defines a married person’s separate property as everything owned before marriage, plus anything acquired during marriage by gift, bequest, devise, or descent, along with the income that property generates (Fam. Code, § 770).

Separate property does not automatically stay separate forever. Depositing separate funds into a joint account can cause commingling, and once separate and community money mix without a way to trace them apart, a court may treat the whole account as community property. A written transmutation agreement between spouses can also convert separate property into community property, or the reverse.

## Why it matters

At death or divorce, separate property in California is not automatically split with the other spouse; only the owning spouse controls where it goes in a will or trust. For example, an inheritance a spouse deposits into a joint checking account used for household bills can lose its separate character if the funds can no longer be traced back to that inheritance.

## Common mistakes

Spouses often assume a gift or inheritance stays separate no matter which account it lands in, without realizing that commingling can erase the paper trail. Not keeping records that let an accountant trace separate funds years later is the mistake that turns an ordinary inheritance into a contested asset at divorce or death.

## Related terms

- [Community Property](https://ridleylawoffices.com/estate-planning-glossary-california/community-property/): the default category for anything acquired during marriage that is not separate.
- [Step-Up in Basis](https://ridleylawoffices.com/estate-planning-glossary-california/step-up-in-basis/): separate and community property get different basis treatment when the first spouse dies.

Part of the [California estate planning glossary](https://ridleylawoffices.com/estate-planning-glossary-california/). For the full treatment, see [Community Property vs. Separate Property Step-Up in California](https://ridleylawoffices.com/community-property-step-up-vs-separate-property-california/).