Also known as: separate properties · separate estate
Written by attorneys — see sources below.
Property that belongs exclusively to one owner rather than to a marital community or partnership. It includes assets owned before marriage or formation, acquired by gift or inheritance, or designated as separate by agreement. Upon divorce or dissolution the court must assign such property to its owner.
Partner Samantha Stone buys a delivery van in her own name with personal funds and titles it without any reference to her partnership. Even though she later uses the van for partnership deliveries, the title instrument contains no partnership indication and no partnership money was used. The presumption therefore treats the van as Samantha's separate property.
During divorce proceedings Simone Sanders proves that a portfolio she inherited from her aunt remains titled solely in her name and was never commingled with marital funds. The court assigns the entire portfolio to Simone as her separate property and divides only the community assets between the spouses.
Stella Shapiro and her partner sign a written agreement stating that each person's earnings and acquisitions during their relationship will remain that person's separate property. When the relationship ends, a court enforces the agreement and awards Stella the home she purchased with her own earnings.
In October 1964, plaintiff and defendant entered into an oral agreement. While the parties lived together, they would combine their efforts and earnings. They would share equally any and all property accumulated as a result of their efforts, whether individual or combined. They further agreed to hold themselves out to the general public as husband and wife. Plaintiff would render her services as a companion, homemaker, housekeeper, and cook to defendant. Shortly thereafter, plaintiff agreed to give up her lucrative career as an entertainer and singer. She did so to devote her full time to defendant as a companion, homemaker, housekeeper, and cook. In return, defendant agreed to provide for all of plaintiff's financial support and needs for the rest of her life. The parties lived together from October 1964 through May 1970. During this period, as a result of their efforts and earnings, they acquired in defendant's name substantial real and personal property. This included motion picture rights worth over $1 million. In May 1970, defendant compelled plaintiff to leave his household. He continued to support plaintiff until November 1971 but thereafter refused to provide further support. Plaintiff brought this action asserting two causes of action. The first, for declaratory relief, asked the court to determine her contract and property rights. The second sought to impose a constructive trust upon one half of the property acquired during the course of the relationship. Defendant answered the complaint after an unsuccessful demurrer. Following extensive discovery and pretrial proceedings, the case came to trial. When the case was called for trial, plaintiff sought leave to file an amended complaint. The trial court treated defendant's motion to dismiss as one for judgment on the pleadings. This was augmented by a stipulation that defendant's marriage to Betty Marvin did not terminate until the filing of a final decree of divorce in January 1967. The court granted the motion and entered judgment for defendant. Plaintiff moved to set aside the judgment. She asked leave to amend her complaint to allege that she and defendant reaffirmed their agreement after the divorce became final. The trial court denied the motion. Plaintiff appealed from the judgment.
View caseSelena Singh obtains a divorce decree in State A that awards her the couple's vacation cabin located in State B. Because the cabin was purchased with Selena's inheritance, it is characterized as her separate property, and the decree's assignment of that asset is recognized when she records the judgment in State B.
The plaintiff and E. W. Fall were married in Indiana in 1876. Subsequently they moved to Nebraska, where by their joint efforts, accumulations, and earnings they acquired the land in controversy through a single conveyance. In 1889 the couple relocated to Washington and continued to reside there as husband and wife until their separation in January 1895. On February 27, 1895, E. W. Fall, then a resident of King County, Washington, filed suit for divorce against the plaintiff in the Superior Court of that county. He alleged that he owned the Nebraska land as his separate property purchased with money from his parents and prayed for a divorce together with a just and equitable division of the property. The plaintiff appeared by answer and cross-complaint, denied the allegations, asserted that the property was community property purchased with the proceeds of their joint labor after marriage, and prayed that the property be set apart to her as her separate property subject only to a $1,000 mortgage. The Washington Code provision then in effect authorized the court in granting a divorce to make such disposition of the property of the parties as appeared just and equitable. The Washington court entered a decree granting the plaintiff a divorce, setting apart the Nebraska land to her as her separate property forever free from any claim by E. W. Fall, and ordering him to convey all his right, title, and interest in the land within five days. When he failed to comply, the court appointed a commissioner who executed a deed conveying the land to the plaintiff. Thereafter E. W. Fall executed a mortgage on the land to W. H. Fall and subsequently conveyed the property by deed to defendant Elizabeth Eastin. In 1897 the plaintiff filed suit in Hamilton County, Nebraska, to quiet title to the land and to cancel the mortgage and deed as having been made without consideration and for the purpose of defrauding her. W. H. Fall disclaimed any interest and released the mortgage while Eastin answered putting in issue the legal sufficiency of the complaint and setting forth the loan transaction and deed in satisfaction of the debt. No personal service was had upon E. W. Fall in the Nebraska action. The Nebraska trial court entered a decree in favor of the plaintiff, but after rehearing the Supreme Court of Nebraska reversed that decree.
View caseSeth Shapiro executes a deed conveying his joint-tenancy interest in the marital home to himself as a tenant in common. The severance converts the former joint interest into Seth's separate property, allowing his estate to pass his undivided half to his siblings rather than to his surviving spouse by right of survivorship.
Mr. and Mrs. Riddle purchased a parcel of real estate, taking title as joint tenants. Several months before her death, Mrs. Riddle retained an attorney to plan her estate. After reviewing pertinent documents, he advised her that the property was held in joint tenancy and that, upon her death, the property would pass to her husband. Distressed upon learning this, she requested that the joint tenancy be terminated so that she could dispose of her interest by will. As a result, the attorney prepared a grant deed whereby Mrs. Riddle granted to herself an undivided one-half interest in the subject property. The document also provided that “The purpose of this Grant Deed is to terminate those joint tenancies formerly existing between the Grantor, Frances P. Riddle, and Jack C. Riddle, her husband. ...” He also prepared a will disposing of Mrs. Riddle’s interest in the property. Both the grant deed and will were executed on December 8, 1975. Mrs. Riddle died 20 days later. The trial court refused to sanction her plan to sever the joint tenancy and quieted title to the property in her husband. The executrix of the will of Frances Riddle appeals from that judgment.
View caseSteven Silva fails to file the required statement of claim for mineral rights he inherited before marriage. Under the applicable statute the interest lapses and returns to the original grantor. Because the rights were Steven's separate property, the lapse affects only his individual ownership and does not impact any community assets.
In 1971 the Indiana Legislature enacted the Dormant Mineral Interests Act. The Act provided that any severed mineral interest unused for a period of twenty years would be extinguished and its ownership would revert to the then-current surface owner unless the mineral owner filed a statement of claim in the county recorder's office. The statute took effect on September 2, 1971, and included a two-year grace period allowing owners of already unused interests to preserve them by filing claims. A mineral interest was deemed used if minerals were produced, rents or royalties were paid, or taxes were paid on the interest. Owners could also preserve interests by filing statements of claim, and an exception allowed owners of ten or more interests in the same county who inadvertently omitted some to file a supplemental claim within sixty days of receiving notice. The first of the two consolidated cases concerned fractional mineral interests severed in 1942 and 1944 from a 132-acre tract in Gibson County, Indiana. Eleven appellants claimed ownership of those interests, and a twelfth appellant held oil and gas leases executed by the others in 1976 and 1977. The appellee owned the surface of the tract. The parties stipulated that the mineral interests had not been used for twenty years and no statement of claim had been filed within the grace period, so the interests lapsed on September 2, 1973. On April 28, 1977, the surface owner published and mailed notice of the lapse. The mineral owners then filed statements of claim, and the surface owner commenced an action seeking a declaratory judgment that the interests had been extinguished. In the second case the severed mineral estate was created on March 1, 1954, when appellants Pond and Bobe conveyed land to the appellees by warranty deed that reserved the minerals. On June 17, 1976, Pond and Bobe executed a coal mining lease with appellant Consolidated Coal Co. The parties stipulated that the interest had not been used and no statement of claim had been filed during the twenty years following its creation, resulting in lapse on March 1, 1974. Notice of the lapse was given by letter and by publication in the Princeton Daily Clarion on March 4, 1977. The parties jointly filed suit on January 12, 1978, to resolve their conflicting claims to the mineral rights. In both cases the agreed statements of facts recorded that the mineral owners had neither used their interests nor filed claims within the statutory periods, and the surface owners had given notice after the periods had expired. The statements did not indicate whether any appellant had known of the Act or its possible effect before receiving notice. The state trial court held the statute unconstitutional. The Indiana Supreme Court reversed. The United States Supreme Court noted probable jurisdiction and consolidated the appeals.
View caseCourts look to the time and manner of acquisition. Property owned before marriage or received by gift or inheritance during marriage is separate. Tracing rules and transmutation agreements can also establish or change the character of an asset.
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In most community-property states the court must award separate property to its owner. A few jurisdictions permit limited invasion of separate property for equitable reasons such as child support or when justice requires, but the starting rule is that separate property stays with its owner.
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Separate property passes according to the decedent's will or the laws of intestate succession. The surviving spouse has no automatic ownership interest in the decedent's separate property, although an elective-share statute may allow the survivor to claim a portion of the augmented estate that includes certain separate assets.
Under the Uniform Partnership Act, property acquired in a partner's individual name without partnership indication and without partnership funds is presumed separate even if later used in the partnership business.
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