Commingle

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Definition

Description

In law, commingling is a breach of trust in which a fiduciary mixes funds that he holds in the care of a client with his own funds, making it difficult to determine which funds belong to the fiduciary and which belong to the client. This raises particular concerns where the funds are invested, and gains or losses from the investments must be allocated. In such circumstances, the law usually presumes that any gains run to the client and any losses run to the fiduciary who is guilty of commingling.

Commingling is particularly an issue in case of bankruptcy of the fiduciary. Funds held in care are not the fiduciary's property, and the client is not a creditor, so in case of bankruptcy, if the funds have been properly kept separate, they can easily be returned to the client. If, however, the funds have been commingled, the client is potentially subject to becoming entangled in the bankruptcy proceedings, and there may not be sufficient funds to pay the client back.

Commingling is also evidence that may be used in "piercing the corporate veil" of a sham corporation, where a person shields himself from personal liability through "incorporation", yet fails to observe strict separation of corporate and personal property or accounts, among other improprieties.

In community property states of the United States, "commingling" non-marital property with marital property can make it community property. For example, depositing money received by an individual through inheritance – ordinarily considered non-marital, individual property – into a joint bank account may transform the money into community property. Most community property states apply a presumption of community property; where there is any commingling, the burden of proof is on the party disputing the classification to "trace" the property back to individual property, and demonstrate an intent to keep it separated.[1]

See also