Recent Blog Posts in June 2009 |
| June 09, 2009 |
| GIFTS: Are they marital or non-marital property? |
| Posted By L. Anthony Bompiani, Esquire |
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When
I am meeting with a prospective divorce client for the first time, one
of the most common questions I hear is whether or not a gift is
considered marital property or non-marital property. The answer, like
in any legal situation, is it depends. You knew I was going to say
that, right?
Generally speaking, gifts to one specific spouse from a third party are
non-marital property. Thus, they are the sole property of the receiving
spouse. For this to be true, it needs to be clear that the gift was
made from a third party to one spouse. It cannot be a gift to both
spouses jointly (i.e. wedding gifts, anniversary gifts, etc.).
Now, I use the word "generally," because, as always, there are some
exceptions. For example, once a receiving spouse "co-mingles" the gift
with joint property, or "transfers" the gift to both spouses jointly,
the gift becomes marital. To illustrate this point I give you the
following example. Joe Husband receives a gift of $10,000.00 from his
Father who is executing his estate plan. Joe takes the $10,000.00 and
deposits it in "his" Certificate of Deposit account. At this time, the
gift is non-marital. But then Joe, being the loving husband that he is,
transfers it to a Certificate of Deposit account jointly owned with
Jane Wife. The gift, upon transfer, becomes marital property.
One slight twist you should know is that any appreciation in value during the marriage of a non-marital gift, is marital.
Finally, gifts between spouses are marital property and will be divided
through the equitable distribution process. So, ladies, that diamond
ring he bought you for Christmas? Should you get divorced, it is just
as much his as it is yours.
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