Gifts From Your Spouse: How Are They Handled in California Divorce?

When you are given a gift of substantial value from your spouse or registered domestic partner, you might be in for a surprise when you get a divorce in California. Why?

If you do not have an express written declaration indicating that the gift was a gift from your spouse, then it will likely be considered community property if you separate or divorce.

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 buying you the gift. In other words, you get nothing and the spouse gets to take back the gift or the value of the gift.

The California Family Code provides that married couples may "transmute" (change) 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 about gifts from your spouse in divorce?

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 and that your spouse will not be entitled to any reimbursement if you separate – and keep it! Romantic huh?

Now, suppose the gift is relatively inconsequential when compared to the value of your other marital property. In that case, the court will probably find that the gift is the separate property of the person it was given to. But again – absent an explicit, 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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