Marital v. Non-Marital Gifts in Divorce

In Minnesota, all assets are presumed to be marital and capable of division in a divorce.  The marital assets and debts are referred to as the “Marital Estate.”  The Marital estate is divided equitably in divorce, which does not necessarily mean mathematically equally, but that is often the presumed result.

 

Either party may claim that an asset is not part of the marital estate and should be awarded to them individually without its value being used in the calculation of the Marital Estate.   The burden of demonstrating an asset is non-marital, falls on the person making the claim. 

 

Categories of non-marital assets include the following:  (1) Premarital Assets that either party had before the marriage; (2) Inheritance; (3) some personal injury settlements; and (4) gifts to one party but not both.

 

This article is about those pesky non-marital gifts. The key to determine what is and what is not a marital gift is dependent on determining the “donative intent.” In other words, who did the person giving the gift want it to go to.  That is not always easy to discern.  Claiming at the time of a divorce that a gift that was made years prior as intended only for one half of a married couple can be a dubious claim absent evidence of that intent at the time the gift was made. 

 

A “Marital Gift” is likely a marital asset.  Just like the parties cannot claim that the wedding gifts their family members gave them for their happy day were their property alone, one party cannot claim a “Marital gift” as a non-marital asset even if it was provided by their family member  or friend.

 

To try and determine the donative intent requires looking at the evidence that exists at the time the gift was made.   Was a check written out to one party or both parties?  Was there a gift letter to one party or both parties when the gift was made?  Was a non-monetary gift titled in one name or both names when transferred? Was the gift commingled with joint property so that it loses its non-marital characteristic (e.g. placing proceeds in a joint bank account and adding other funds into that account). What if your Uncle Henry sells to you land valued at $300,000 for $200,000 intending that the $100,000 discount was a gift?

 

Given the enormous variety of ways in which gifts can be made, discussing your non-marital claims with an experienced attorney can be critical.  Call (952) 442-7722 for a consultation.