The Law Firm of Robert D. Stein

In a Florida divorce, property is divided according to the equitable distribution laws. However, not all of your property will be split during the divorce.

In Florida, marital property is the only type of property that is subject to equitable distribution. Separate property, on the other hand, is not divided between the spouses and will remain in possession of the spouse who acquired it.

Are Gifts Considered Marital vs. Separate Property in a Florida Divorce?

One of the factor is whether the gifts were exchanged between the spouses or were received from third parties.

The classification of gifts as marital and non-marital is based on the “equitable distribution of marital assets and liabilities” under the Florida Statutes Section 61.075. The state law provides that gifts from one spouse to the other are considered marital assets and are subject to equitable distribution.

The statute provides that gifts acquired separately by one spouse from a third person, inheritance, devise, or descent are classified as separate (or non-marital) assets. Also, any assets acquired in exchange for such assets are considered separate property.

Are Gifts Received from a Spouse or Third Party Marital Assets?

When the gift was given plays a major role in determining whether the gift is marital or separate. Under Florida’s equitable distribution law, assets acquired during the marriage are classified as marital assets. The same principle applies to marital gifts.

However, if the gift was received from your spouse or a third party before the marriage, the gift would be considered separate. The spouse who received a gift prior to the marriage can retain the asset after a divorce.

When a spouse receives a gift from a third party during the marriage, the gift will most likely be considered separate property. However, things can get complicated when the gift comes in the form of money and is commingled with marital funds. In that case, even if the gift was initially “non-marital,” it can turn into a marital asset and will be divided between the parties.

What About Inheritance?

Things can get complicated when either spouse receives money or property in the form of inheritance from a deceased family member. While inheritance is typically classified as separate property, commingling funds can turn it into marital property.

For example, if you added your spouse’s name to your inherited home title or placed inherited funds in a joint bank account, the inheritance will lose its statute of “separate” property. If you wish to contest the classification of a gift during a Florida divorce, you are required to demonstrate clear and convincing evidence to the court.