Are Gifts Marital Property?

David P. Badanes, Esq.

In New York, the general rule is that any property, including a gift, if given during the marriage is considered marital property. Therefore, if you receive a gift, then it may be considered marital property and its value will be split 50/50 with your spouse.

If you receive a gift, then you have to demonstrate that it was given to you as a gift and that it is not marital property. This is often very difficult to do.

For example, your parents may have given you a piece of land, a second home or even their own home to you. The intent is to provide the gift only to the son/daughter as a gift as their separate property. However, unless it can be shown that the transfer of the property was intended to be a gift to only the son/daughter and not to the married couple, the transfer will be deemed to be either a gift to the married couple or to be a transfer to the married couple. Either way, what may have been intended as a transfer to only their son/daughter will be interpreted as a transfer to both the husband and the wife.

If you intend to make a transfer of a gift as separate property, then you should follow some of the following steps:

1. Prepare a notarized document at the time of the transfer that clearly states that the transfer of the property is intended to be a gift.
2. The gift should be reflected on both the tax return of the donor and the donee.
3. The property’s title must remain in the name of the person receiving the gift.
4. If the gift is land, home, or other real property, then any monies spent to maintain the property should be clearly taken from the donee’s funds and not from marital funds.

David Badanes and the Badanes Law Office have assisted several individuals in obtaining a divorce. If you live in Long Island or in New York City, and are thinking of getting a divorce, call the Badanes Law Office today at: 631-239-1702, email us at david@dbnylaw.com or visit our web site: www.dbnylaw.com.
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