Woman signing divorce documents

Gifted Assets and Divorce

In a Florida divorce, marital assets are equitably divided between the spouses. Equitable division of the assets means that the assets are divided fairly under the circumstances and will not necessarily be divided in an equal split. Non-marital assets are not subject to division and remain the separate property of the spouse to which it belongs. As the categorization between marital and nonmarital assets has powerful implications in divorce, many wonder what assets fall into which category. A person may wonder, for instance, whether gifts received during the marriage would be considered marital property. Generally speaking, anything received, earned, or purchased prior to marriage is considered separate property, with certain exceptions. But, would gifts be considered marital property whether they were received before or during the marriage?

Gifted Assets and Divorce

Florida law defines marital assets to include those acquired during the marriage, either individually by a spouse or jointly by both of them. This means that anything acquired during the marriage is usually considered to be marital property. However, you must then turn to that portion of the Florida statutes which details all possible non-marital assets. There is a specific provision in this section which states that assets separately acquired by either spouse “by noninterspousal gift, bequest, devise, or descent, and assets acquired in exchange for such assets” are considered to be non-marital assets. 

What all this means, essentially, is that gifts received by one spouse during the marriage are considered to be separate property in the event of divorce, except for gifts between the spouses which will be considered marital property. An inheritance, for instance, would be considered a non-marital, separate asset. Wedding presents gifted to both spouses as a couple are considered to be marital assets. Wedding rings and engagement rings, however, are considered to be premarital gifts. As such, they remain the property of the receiver in the event of divorce.

There is, however, a few things that are important to note. Non-marital assets, including noninterspousal gifts, can be converted to marital assets through commingling. When a non-marital asset is commingled with a marital asset, it becomes marital. Additionally, it is important to understand that, while a gift may be considered to be a non-marital asset, it can still be relevant to the divorce. For instance, the non-marital asset may not be subject to equitable division, but it can still be used to offset any alimony the spouse may be entitled to as it would be included in that spouse’s asset calculation. While already gifted assets may be included in such calculations, the court cannot and will not consider future gifts, such as potential inheritances, during calculation of alimony.

Florida Family Law Attorneys

Divorce can have powerful implications for your future. Do not leave anything to chance. Reach out to the dedicated divorce attorney team at Bernal-Mora & Nickolaou for assistance. Contact us today.

Andrew Nickolaou

Andrew Nickolaou, Esq., B.C.S., is a founding partner at Bernal-Mora & Nickolaou, P.A. He practices almost exclusively in divorce, marital and family law. Andrew also handles record expungements and sealings. If you have questions about this article, contact Andrew today by clicking here.