October 2, 2008

Ask The Lawyer

Personal injury damages may be assigned to injured spouse

This week's question:
I was seriously injured in an automobile accident several months ago. And if that was not bad enough, now my wife and I are having marital problems. What I am wondering is this: if we should separate, will my settlement money be given to me 100 percent or will I need to share 50 percent of it with my wife because the settlement may be considered community property?

Will W.
Almaden Valley


Dear Will,
You have e-mailed in a great question, Will. It is too bad about your marital situation and your accident too, but maybe you and your wife can work out the marital issues.

If you cannot work things out, I can see why you are concerned about your accident settlement money. Since you said that your accident occurred while you were married and living together, chances are that the settlement money will be considered or classified initially as community property, but the money may be “assigned” to you as the injured spouse.

Let me explain this a little further. The California Family Code in §2603 defines community estate personal injury damages. It provides as follows:

(a) “Community estate personal injury damages” as used in this section means all money or other property received or to be received by a person in satisfaction of a judgment for damages for the person’s personal injuries or pursuant to an agreement for the settlement or compromise of a claim for the damages, if the cause of action for the damages arose during the marriage but is not separate property as described in §781, unless the money or other property has been commingled with other assets of the community estate.”

§781 of the California Family Code is entitled “Cases Where Damages for Personal Injury Are Separate Property.” This pertains to other situations, including situations where the parties have been separated or their marriage has been dissolved. In many of those types of situations, personal injury damages could well be the separate property of the injured spouse and awarded to him or her as long as the funds are not “commingled” or mixed in with community property.

So, you can see that we start out with the basic principle that yes, the settlement money may well be community property if the money was received or grounds for the suit arose during marriage prior to any separation of the parties.

But then §2603 of the Family Code goes on to state that:

(b) Community estate personal injury damages shall be assigned to the party who suffered the injuries unless the court, after taking into account the economic conditions and needs of each party, the time that has elapsed since the recovery of the damages or the accrual of the cause of action, and all other facts of the case, determines that the interests of justice require another disposition. In such a case, the community estate personal injury damages shall be assigned to the respective parties in such proportions as the court determines to be just, except that at least one-half of the damages shall be assigned to the party who suffered the injuries.”

In plain language, this means to me that since you were the injured spouse, ordinarily the settlement money will be “assigned” or given to you 100 percent. But there are other factors that the court may take into account with the provision that at least 50 percent of the settlement money will be awarded to you as the injured spouse.

There are often other issues as well that your attorney needs to take into account, since each case is different. So, I would definitely have a consultation with my own attorney to see how some of these basic rules apply (or do not apply) to my specific situation.

Best wishes in your working all of this out.

Donald J. DeVries
Almaden Valley


Donald J. DeVries is an attorney practicing law in Almaden Valley. If you would like him to answer your question in his next Almaden Times column, you can reach him by e-mail at don@almadenvalleylawyers.com, fax at (408) 268-6502, telephone at (408) 268-9500, or mail at, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. To view Almaden Times columns since 1986 visit www.almadenvalleylawyers.com. DeVries writes this column to provide you with general information about important legal matters affecting California residents—not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.