FAM § 770

Inheritance is separate property under FAM § 770

Under FAM § 770, separate property includes property owned before marriage, gifts, inheritances, and profits. A spouse may convey it without consent.

Official text FAM § 770 — California

(a) Separate property of a married person includes all of the following:

(1) All property owned by the person before marriage.

(2) All property acquired by the person after marriage by gift, bequest, devise, or descent.

(3) The rents, issues, and profits of the property described in this section.

(b) A married person may, without the consent of the person’s spouse, convey the person’s separate property.

Text as published in the 2026 snapshot of the code.

Source: Vaquill Open US Law, compiled from official state publishers (huggingface.co), reproduced under license CC BY 4.0.

Read this provision at the official source →

What it actually says

Section 770 is the counterweight to § 760. Subdivision (a) lists three categories of separate property: all property owned by the person before marriage; all property acquired after marriage by gift, bequest, devise or descent; and the rents, issues and profits of the property described in the section.

The third category is the one people miss. It is not only the inheritance or the pre-marital house that stays separate — the income it produces stays separate too. Rent from a flat owned before the marriage, dividends on shares received as a gift, and the growth in those assets are all separate property under this subdivision. That is a real difference from the general rule that income during marriage is community, and it is why keeping an inherited asset and its income in a separate account matters so much in practice.

What the section does not do is protect a separate asset from everything that happens to it afterwards. Where community earnings or community effort are put into a separate asset — mortgage payments from salary, a renovation, a spouse's work in a separate business — the community may acquire an interest or a right of reimbursement under other provisions, and separate funds deposited into a joint account and spent alongside community money create a tracing problem that can defeat the claim. Subdivision (b) adds a management rule: a married person may convey their separate property without the consent of their spouse, which is the opposite of the position for community real property under § 1102. Whether an asset has kept its separate character is an evidential question about records, and belongs with a family lawyer.

When it applies

Money inherited from a parent during the marriage
A flat owned before the wedding and rented out ever since
A gift from a relative given to one spouse only
Shares held before marriage that have grown considerably
A separate account that has had community money paid into it
A pre-marital house whose mortgage was paid from joint earnings

What this section does not say

It does not protect a separate asset that has been mixed. Where separate and community funds have been combined, the separate character has to be traced, and property that cannot be traced may be treated as community.
It does not stop the community acquiring an interest. Community earnings or effort applied to a separate asset can generate a community interest or a reimbursement right under other provisions.
It does not cover earnings during marriage. A spouse's salary while married is community property under § 760; only the income from separate property is separate under subdivision (a)(3).
It does not make a gift between spouses separate automatically. Changing the character of property between spouses is governed by the transmutation rules, which have their own formalities.
It says nothing about debts. Which debts are separate and which are community is dealt with elsewhere in the Family Code.

Worked examples

Invented situations, written to show how the wording bites. They are not real cases, not judgments and not precedent, and nothing here predicts what would happen in yours.

Illustrative example

One spouse inherits money during the marriage and keeps it in an account in their own name. On separation the other says half of it is theirs.

How the wording applies

Paragraph (a)(2) makes property acquired during marriage by gift, bequest, devise or descent the separate property of the receiving spouse, together with its rents, issues and profits. The fact that decides it is tracing: money kept apart and never mixed remains separate, while an inheritance paid into a joint account used for household spending has to be traced and may not be.

How the parties settled it

The inheritance is confirmed as separate to the extent it can be traced through the statements, the portion spent on the family home is treated as community, and the division proceeds on that basis.

Illustrative example

One spouse owned a flat before the marriage, and during the marriage the mortgage was paid out of joint earnings.

How the wording applies

The flat is separate property under paragraph (a)(1), and the income it produces is separate under paragraph (a)(3). What this turns on is the community earnings applied to it: that does not change the character of the flat, but it can generate a community interest or a reimbursement right under other provisions, calculated from the payments actually made.

How the parties settled it

The flat stays with the spouse who owned it, and the other receives an agreed sum reflecting the community payments towards the principal, paid out of the proceeds of another asset.

Related sections

FAM § 760 Property acquired during marriage is community (FAM § 760) FAM § 771 California Family Code § 771 - Earnings after separation are separate property FAM § 2550 Equal division of community estate – FAM § 2550

That's the law. Now let's settle your problem.

Say what is happening. A neutral mediator hears your side and the other party's, and walks you both to a written agreement. In the advanced settings you can ask for the decision to be reasoned on the California Codes.

This is with

Or open a session directly and invite the other party.

We copy this text from the official publisher and re-check it against that source on every page load, but we cannot guarantee it is complete, current or free of error, and we accept no liability for any reliance on it. An amendment can take effect before a consolidation catches up. The publisher's own copy is linked below; where the two differ, it is the official one that counts.

This page reproduces the text of FAM § 770 in force at the date shown and explains it in general terms. It is not legal advice and takes no account of the circumstances of your case, which can change the answer completely. For a live dispute, for limitation periods, and before taking any step in court, consult a qualified lawyer in California.

← All California law pages