Protecting Separate Property in Oregon

Oregon is an equitable distribution state—courts divide property "as is just and proper in all the circumstances" under ORS 107.105(1)(f), not necessarily 50/50. But Oregon's framework has a unique feature: a statutory presumption of equal contribution for marital assets—with a critical carve-out for gifts and inheritances. Whether you're navigating an uncontested or contested divorce, understanding Oregon's commingling rules and tracing methods is essential to protecting what's rightfully yours.

The Equal Contribution Presumption

Under ORS 107.105(1)(f)(C), property acquired during the marriage ("marital assets") carries a rebuttable presumption that both parties contributed equally, "whether such property is jointly or separately held." If unrebutted, an equal division is often just and proper. Under Kunze v. Kunze (2004), homemaking contributions count equally with wage-earning.

Critical distinction: "Marital property" means everything either spouse owns at dissolution (subject to division), while "marital assets" means the subset acquired during the marriage that triggers the presumption.

The Gifts and Inheritances Carve-Out

Here's Oregon's key protection. Under ORS 107.105(1)(f)(D), if property was "acquired by gift... [including] devise, bequest, operation of law, beneficiary designation or inheritance" by one spouse during marriage and separately held on a continuing basis, the equal-contribution presumption does not apply. This means:

• No automatic equal split: The other spouse cannot invoke the presumption to claim half
• Separately held is the key: The asset must have been maintained separately throughout the marriage
• Court retains equitable discretion: The judge can still consider the asset under the "just and proper" standard

Brush v. Brush (2022) confirmed that courts cannot award a portion of a separately maintained inheritance to the other spouse merely because of the marriage's length or the spouse's refusal to use it for the marriage.

Appreciation During Marriage: A Marital Asset

Under Massee v. Massee (1999), appreciation during the marriage of a spouse's separately held assets is a marital asset subject to the presumption—unless the gift/inheritance carve-out applies. This means:

• Premarital home appreciation: Growth during marriage is presumptively marital
• Inherited property appreciation: If separately held continuously, the carve-out protects appreciation too
• Active vs. passive doesn't change the presumption: Under Crislip v. Crislip (1987), the nature of growth doesn't automatically rebut the presumption

Commingling: Oregon's Spectrum Approach

Oregon doesn't use formal "transmutation" doctrine. Instead, under Kunze and related cases, courts assess commingling and integration as equitable factors on a spectrum:

• Title form: Was the asset retitled into joint names?
• Shared control: Did both spouses manage or access the asset?
• Reliance: Did the couple treat it as a joint resource (retirement planning, family expenses)?

Key principle: Commingling is a spectrum. Courts can award partial sharing rather than all-or-nothing. If funds are mixed to the point the source cannot be identified "with sufficient reliability" (Olinger), the presumption stands unrebutted.

Separation Doesn't End the Presumption

Unlike some states, Oregon has no bright-line separation date cutoff. Under Deming v. Deming (2011), separation alone does not terminate the equal contribution presumption. However:

• Long separation can rebut: Lengthy separation with mutual financial independence can rebut the presumption for post-separation acquisitions and growth
• Filing triggers co-ownership: Under ORS 107.105(1)(f)(E), once a petition is filed, marital assets are treated as co-owned
• Post-separation income still presumptively marital: Unless you can show long separation and independence

Tracing: The Equity Decomposition Method

Oregon courts commonly use an "equity decomposition" approach for property with mixed contributions:

• Separate baseline: Owner's premarital equity or gift/inheritance value
• Marital increments: Principal reductions during marriage plus appreciation during marriage
• Apply the presumption: Divide marital increments per equities (unless carve-out applies)

The spouse claiming a separate interest bears the tracing burden. If you can't reliably identify the source due to mixing, the asset may be treated as fully marital.

Estimate Your Oregon Divorce Costs

Property disputes involving tracing and commingling analysis can increase legal costs. Oregon filing fees are approximately $300. Use our calculator to estimate your total expenses:

Protection Strategies

• Keep inherited assets separately held: Maintain title in your name only throughout the marriage
• Avoid commingling funds: Don't mix inherited or premarital money with joint accounts
• Document the source: Retain wills, probate documents, gift letters, and deposit confirmations
• Track reliance carefully: If you use income from separate assets for family expenses, document it
• Consider title implications: Adding your spouse to title suggests integration
• Consider a prenuptial agreement: Written contracts can clarify separate property expectations

Key Takeaways

• Equitable distribution applies: "Just and proper" division, not automatic 50/50
• Equal contribution presumption: For marital assets unless rebutted
• Gifts/inheritances carve-out protects: If "separately held on a continuing basis"
• Appreciation is marital: Unless the gift/inheritance carve-out applies
• Commingling is a spectrum: Partial sharing possible based on Kunze factors
• Separation doesn't end presumption: Only long separation with financial independence can rebut

For the complete Oregon property division guide and divorce timeline, see our detailed resources. For official forms, visit the Oregon Judicial Department Divorce Forms page.