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Wrongful death recoveries are classified by the time of injury test. If a spouse establishes that the wrongful death is based on what the decedent would have provided that spouse alone as separate property (gifts), this should be enough to rebut the presumption that a cause of action arising during marriage is community property. If the wrongful death of a child occurs during marriage but the recovery is obtained after divorce, it will be classified as separate property. When a wrongful death recovery is community property, the negligence of the plaintiff's spouse will be attributed to the plaintiff under comparative negligence.

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