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Property Acquired With Separate Property

When the separate property or funds of either spouse is intermixed or commingled with community property, so that the separate property has lost its identity and cannot be clearly traced or segregated, it becomes community property.  This causes a forfeiture of the separate character of the property.  However, where the community interest is inconsiderable in the property with which it has been intermingled, the community will not draw to it the separate estate[i].

Property acquired by a husband and wife during marriage is presumed to be community property.  This rebuttable presumption applies to all property, including property purchased with money borrowed by either spouse during the existence of the community.  It also applies to money obtained on an unsecured note executed by one of the spouses during marriage.  The party asserting the separate property character of property bears the burden of proving the property is separate with reasonable certainty and particularity. Property acquired during marriage may be part community and part separate in character, if the source of the property acquired is part community and part separate[ii].

Generally, a spouse, or one claiming through a spouse, must trace and clearly identify property claimed as separate property. Furthermore, it is well settled that the burden is not discharged and the statutory presumption prevails, when the evidence shows that separate and community property have been so commingled as to defy resegregation and identification[iii].


[i] In re Estate of Cudworth, 133 Cal. 462 (Cal. 1901)

[ii] In re Estate of Freeburn, 97 Idaho 845 (Idaho 1976)

[iii] Carriere v. Bodungen, 500 S.W.2d 692 (Tex. Civ. App. Corpus Christi 1973)

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