When is a Gift Your Separate Property?

Dividing marital property is a difficult task, especially for couples with a high net worth. Nonetheless, some basic principles apply which make characterizing property as “marital” or “separate” easier.

One rule applies to gifts. Generally, any gift you receive is your separate property, even if you received the gift while married. That means you can usually leave the marriage without having to divide the gift. But there are exceptions to this general rule, and sometimes even separate property loses its character and becomes marital.

The General Rule Regarding Gifts

Florida Statute § 61.075(6)(b)(2) states that “nonmarital” assets include assets obtained separately by non-interspousal gift. In other words, gifts are considered non-marital unless they are gifts from one spouse to the other.

If a man buys his wife a necklace for her birthday, then this is an interspousal gift, so it should be considered marital property when the couple divorces. However, if a woman receives the necklace as a gift from her mother, then it is not marital. The wife can exit the marriage with the gift as her separate property.

There are some exceptions:

1. The gift is given to both of you. Some gifts are made to both spouses. For example, your children might give you a car or RV. This is a gift to both parents, so it isn’t your separate property to take with you when you divorce. There might be a dispute regarding whether a gift was given only to you or to both spouses.
2. You commingle the gift with marital assets. Some people end up using a gift in such a way that it loses its non-marital character. For example, a gift of money could be deposited into a bank account and used to pay living expenses. Or a parent might give you money to pay toward the downpayment on a marital home. We must look closely at the gift to see if it has retained its separate character.
3. You are given a gift after filing for divorce or entering a separation agreement. Your spouse might give you a gift even after filing for divorce. A gift made outside this window is probably your separate gift.

Gifts can represent a considerable sum of money. Many parents now give gifts to their children while living instead of leaving them assets in a will. Upon divorce, you can expect your spouse to claim the gift is not yours to keep. Work with a lawyer to determine the character of the gift.

Call to Speak with a Miami Asset Division Lawyer

Hamilton O’Neill knows that divorce is a significant financial event for most couples. Even those with substantial assets could endure financial hardship because they did not get the marital property they deserved when divorcing. Call our office to speak with a Miami family lawyer at our firm. We can develop a strategy for requesting marital property that allows you to end your marriage while enjoying financial freedom at the same time.

Source:

leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0000-0099/0061/Sections/0061.075.html