Oklahoma Probate: marital vs. separate property

While it comes up in the divorce setting, the “marital” versus “separate” property question also arises after someone dies. Most often it happens when the marriage was the second for at least one spouse and there are children from a previous marriage. What are the basics of marital versus separate property:

Marital property generally is property purchased during marriage, with marital funds or property that the couple chooses to treat as marital property.

Separate property generally is property owned by a spouse before marriage which retains its separate status during marriage because it is maintained as spouse’s individual property in uncommingled state.

Separate property does not mean only “owned before marriage” it can be other things, as the examples below show. Moreover, not all property acquired during a marriage by either spouse is automatically considered “marital property.” To give you some examples, when Oklahoma courts looks at this issue, they have found “separate” property in at least these areas:

(1) property owned by a spouse prior to the marriage, which retained its separate status during the marriage because it was maintained as separate property,
(2) gifts to one spouse from a third-party during the marriage and gifts from one spouse to the other spouse, during the marriage,
(3) descents or devises to one spouse during the marriage, maintained as separate property,
(4) an exchange, during the marriage, of property in which the owning spouse exchanges separate property for other separate property,
(5) the owning spouse’s purchase of other property with his/her separate funds during the marriage,
(6) compensation received by one spouse for personal injury.

Posted by Shawn Roberts

On this blog, I write about and try to answer practical Oklahoma legal questions. My focus and most experience is in estate planning and business issues including Oklahoma non-compete law. I make a living as an attorney in the law firm I founded, Shawn J. Roberts, P.C. in Oklahoma City. I live in Edmond with my wife Amy and my two children, Sam (19) and David (11). We live precisely in the path of where the "wind comes sweeping down the plains."