QUESTION

If I get a legal separation or a divorce now (before I obtain the money) will I avoid a 50/50 split of community property?

Asked on Oct 29th, 2014 on Divorce - California
More details to this question:
I am married male for 18 yrs. In California with 2 kidโ€™s age; 14 and 17. I have learned I will get an inheritance of $100k in about 12-24 months. Recently my wife decided this was the end of our love lives but we live in the same large home in separate bedrooms; she wants to move away - but canโ€™t - do to financial reasons. After some thought I now realize, I donโ€™t want to split this inheritance of $100k 50/50 if my wife is the one whom wants to end the marriage. Question; if I get a legal separation or a divorce now (before I obtain the money) will I avoid a 50/50 split of community property? Or will it matter? If the check is made to my name only - is it legally 100% my funds to disperse to my children as I see fit: please reply. Thank you for your help.
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3 ANSWERS

In California, community property does not include those things given to you alone (not things left to both of you) by gift or bequest/inheritance, so long as you do NOT co-mingle those funds with community funds (in a community bank account or a bank account with community funds in it) or do anything else which would be evidence that you meant for the funds to become community in nature. Therefore, so long as you keep everything separate, it will be yours. It sounds as if you will need those funds to obtain your own residence and save toward retirement, so consider those things before promising it to your children. Additionally, you will want to make all of this legal sooner, rather than later, as it will only get more complicated as time goes on and as you acquire things with that money or earn interest on that money. Also, the longer you are married, the longer you must pay Spousal Support if you earn more money than your wife.
Answered on Oct 30th, 2014 at 5:38 PM

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An inheritance is the separate property of the person who receives it, not the community property of the spouses. If you do not commingle the funds with community assets then you should have no trouble in retaining full control of the inherited funds. You should consult a probate attorney to review all of the facts if you have any questions about how best to handle this inheritance.
Answered on Oct 30th, 2014 at 3:01 PM

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Family Attorney serving Sacramento, CA at Peyton & Associates
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In California all inheritance is considered to be the recipient's separate property. It is not subject to division in a divorce or legal separation. Good luck.
Answered on Oct 30th, 2014 at 1:11 PM

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