Gifts, Inheritances, and Divorce: What Counts as Separate Property in Washington?

Dividing assets in a divorce almost always raises the same worried question about a gift or an inheritance: is it mine, or do we have to split it? In Washington, the answer usually starts in your favor, but where it ends depends on the details.

Community Property vs. Separate Property

Washington is a community property state, so the first job in any divorce is to sort every asset into one of two buckets. Separate property is what a spouse owned before the marriage, plus anything that spouse receives during the marriage by gift, inheritance, will, or descent. That definition comes straight from statute: RCW 26.16.010 protects property acquired "by gift, bequest, devise, descent, or inheritance," along with the rents, issues, and profits that property produces. Community property, defined in RCW 26.16.030, is essentially everything else the spouses acquire during the marriage, such as wages and the assets bought with those wages, no matter whose name is on the account or title.

One point trips up almost everyone: "marital property" is not really a Washington term. States that follow equitable distribution use it, but Washington speaks in terms of community property and separate property, and the difference is more than vocabulary. It changes how the whole analysis works.

It also comes with a presumption. Under Washington law, anything acquired during the marriage is presumed to be community property. If you want to claim an asset as your separate property, the burden is on you to prove it, generally by clear and convincing evidence. That presumption is the backdrop for everything that follows.

Washington Does Not Split Everything 50/50

Here is the correction that matters most. Many people believe a Washington divorce presumes a 50/50 split of everything acquired during the marriage. That is not the rule. While spouses each own an undivided one-half interest in community property during the marriage, the standard a court uses to divide property at divorce is different. Under RCW 26.09.080, the court divides the property, "either community or separate," in a way that is "just and equitable" after weighing all relevant factors, including the nature and extent of the community property, the nature and extent of the separate property, the length of the marriage, and each spouse's economic circumstances.

Two things follow from that. First, an equal split is a common result, especially in shorter marriages, but it is an outcome, not a starting presumption, and courts have real discretion to divide property unequally when fairness calls for it. Second, and often surprising, separate property is not automatically off the table. Because RCW 26.09.080 places both community and separate property before the court, a judge has the authority to award one spouse's separate property to the other. In practice, courts usually leave each spouse's separate property with its owner, but "usually" is not "always," and that distinction can matter in a long marriage or where one spouse would otherwise be left with very little. Our overview of how property is divided in a Snohomish County divorce walks through how the just and equitable standard applies across the whole estate.

Gifts and Inheritances From Someone Else

A gift or inheritance that a third party, such as a parent, gives to one spouse is that spouse's separate property under RCW 26.16.010. This is worth emphasizing: the asset is separate because of how it was acquired, not because of any paperwork. You do not need an affidavit to make an inheritance separate.

Documentation still matters a great deal, though, and here is why. Recall the community property presumption: everything acquired during the marriage is presumed community until proven otherwise. So while a gift to you alone is separate by law, you may still have to prove it, and that is where records earn their keep. A note from the giver, a canceled check, a will, or a deed showing the property came to you individually is how you carry your burden if the classification is ever challenged.

When a third party gives a gift to both spouses, it is generally treated as belonging to both. Even then, the donor's intent controls the classification, so a gift meant for the couple together is shared, while a gift the giver actually intended for one spouse can remain that spouse's separate property regardless of whose name ends up on a title.

Gifts Between Spouses

The idea that any gift one spouse gives the other becomes community property to be split down the middle does not hold up. The answer depends on where the gift came from. Neither spouse can give away community property without the other spouse's consent, which RCW 26.16.030 makes clear, so a true gift usually involves the giving spouse's own separate property. When separate property is genuinely given to the other spouse, it can become that spouse's separate property. But Washington courts will not treat property as changing character without clear evidence that the giving spouse actually intended that change. In In re Estate of Borghi, 167 Wn.2d 480 (2009), the Washington Supreme Court held that property keeps the character it had when it was acquired unless there is clear and convincing evidence of an intent to change it. A birthday present is not the same as a documented decision to transfer ownership, so this is an area where blanket rules mislead more than they help.

The Real Risk: Commingling

If separate property loses its protected status in a divorce, commingling is usually the reason. Commingling happens when separate and community assets are mixed together. The classic example is depositing an inheritance into a joint checking account that the couple uses for everyday expenses.

Commingling by itself does not automatically convert separate property into community property. The real question is whether the separate portion can still be traced. If you can document that a specific asset or a specific dollar amount came from your inheritance, Washington courts will generally let it keep its separate character even after some mixing. The problem is practical: the more the funds are blended, and the more time and transactions pile up, the harder tracing becomes. When separate property is so thoroughly mixed that it can no longer be distinguished, the presumption of community property takes over and the whole pool may be treated as community. The burden of tracing falls on the spouse claiming the separate share, which is one more reason careful records are worth keeping.

What About the Increase in Value?

This is where the common understanding of Washington law breaks down, so it is worth spelling out. Suppose you inherit a home worth $100,000, and during the marriage its value grows to $150,000. It is tempting to assume the $50,000 of growth automatically becomes community property. It does not.

The home was inherited, so it is your separate property, and under RCW 26.16.010 the "rents, issues and profits" of separate property are separate as well. If the increase came from the market, the full $150,000 remains yours. The Washington Supreme Court reinforced this in Borghi, noting that even when the community's labor or income increases the value of separate property, the nature of the property stays separate. What can happen, when community funds or community effort helped drive the increase, is that the community may be entitled to a right of reimbursement for what it contributed, for instance if marital income paid for a major renovation. That is a claim for reimbursement, not a rule that the appreciation flips into community property. The difference sounds technical, but it can be worth tens of thousands of dollars.

Protect What Is Yours

Property characterization is one of the most consequential and most misunderstood parts of a Washington divorce, and small facts, like which account an inheritance landed in, can change the outcome. A prenuptial agreement is one way couples settle these questions in advance, but it is far from the only one. If you are facing divorce in Snohomish County and want to understand what is separate, what is community, and how the just and equitable standard is likely to apply to your situation, the Law Office of Chad Foster can help you sort it out and protect what is rightfully yours. Call us at 425.785.8679 to talk it through.