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Family Law

What is Separate Property?

Updated January 24, 2026

Property that belongs to one spouse alone, typically property owned before the marriage or received during the marriage as a gift or inheritance, which is usually not divided in a divorce.

Family Law

Understanding Separate Property

States define separate property (called nonmarital property in some states) by statute. Common categories include assets owned before the marriage, gifts and inheritances received by one spouse, and property the spouses agreed in writing would stay separate, such as through a prenuptial agreement. Income or growth on separate property may be treated as separate or marital depending on the state and on whether marital effort or funds contributed to the growth. Separate property can lose its character when it is mixed with marital funds or retitled into both names, which is why tracing records matter.

Examples

  • 1A savings account one spouse owned before the wedding and never added marital funds to
  • 2An inheritance from a parent kept in an account in the inheriting spouse's name only
  • 3A car given to one spouse as a personal gift from a relative

Why This Matters in Legal Cases

Separate property claims are among the most common disputes in property division. The spouse claiming that an asset is separate usually has to prove it, and the proof is often old bank statements, closing documents or estate paperwork. When separate and marital money have been mixed, the claim may depend on whether the separate portion can still be traced.

Frequently Asked Questions

Is an inheritance separate property?

In most states, an inheritance received by one spouse is that spouse's separate property. It can lose that status if it is commingled with marital funds or used for marital purposes, depending on the state's rules and whether the original funds can be traced.

Can the increase in value of separate property be divided?

It depends on the state and the facts. Passive growth, such as market appreciation, is often treated as separate. Growth caused by the effort of either spouse during the marriage, or by marital money invested in the asset, may be treated as marital property in whole or in part.

What does commingling mean?

Commingling is mixing separate property with marital property, such as depositing an inheritance into a joint checking account used for household bills. Once funds are mixed and cannot be traced back to their separate source, a court may treat them as marital.

Sources

Related Terms

Marital Property

Assets and debts acquired during the marriage that are subject to division in a divorce, as opposed to separate property owned before marriage or received as gifts/inheritance.

Community Property

A system of marital property law, used in a minority of states, under which most property and income acquired by either spouse during the marriage belongs to both spouses equally.

Equitable Distribution

The system most states use to divide marital property and debts in a divorce, in which the court splits the marital estate in a way it finds fair, which is not always an equal split.

Prenuptial Agreement

A written contract signed by two people before they marry that sets out how property, debts and sometimes spousal support will be handled if the marriage ends by divorce or death.

Divorce

The legal dissolution of a marriage by a court or other competent body, ending the marital relationship and dividing assets, debts, and responsibilities.

Last updated: January 24, 2026
Reviewed by: Quilia Legal Content Team

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