Wednesday, September 4, 2013

Is a gift from your spouse really a gift?

When you are given a gift of substantial value from your spouse or Registered Domestic Partner, you might be in for a surprise at divorce in California. Why? 


If you do not have an express writing from your spouse, then it will likely be deemed community property upon separation. Additionally, if that gift was paid for from your ex's separate property funds (an inheritance maybe?), your spouse will likely be able to claim a Family Code section 2640 reimbursement for the funds spent on the acquisition of the gift. In other words, you get nada. 

The California Family Code provides that married persons may "transmute" separate or community property to the separate property of the other spouse only if the following requirements are met: an express declaration, in writing, that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected. 

What's the lesson? If you receive a gift of substantial value from your spouse, delicately request a card, letter or memo reflecting that the gift is in fact a gift that s/he shall not be entitled to any reimbursement -- and keep it! Romantic huh?

Now if the gift is relatively inconsequential when compared to the value of your marital estate, the the court will probably find that the gift is the separate property of the donee. But again -- absent a clear, written declaration that the property is intended to be a gift with no right of reimbursement -- you may be leaving it up to chance. 

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