The Marital Residence - Was Your House a Gift?
By Conrad van Loggerenberg
If you purchased the marital home after the date on which you got married, under the law it will be classified as “marital property”. In most cases that means each of you will be entitled to a 50% share in the house when the marital property is divided up during a divorce. But what happens if your home was not purchased, but rather it was gift to one of you from a third party, such as a relative?
As a general rule, property acquired by gift or inheritance is the separate property of the spouse to whom the gift or bequest was made. But where the gift or inheritance was made to both spouses jointly, the court will view that property as marital – as if it was simply purchased during the marriage. Even if the property was given to one spouse and the donor had the intent to give it to that one spouse alone, the property may still be classified as “marital property” subject to equitable distribution. If the spouse who received the gift places the title of the property in the names of both spouses, the court may interpret that as the intent to transform the character of “separate property” (the gifted house) into “marital property.” In such cases, the marital residence may still be subject to equitable distribution as if it was simply purchased by the two of you during your marriage.
The key take away here is that if your spouse has inherited or received a gift of property, after which your spouse placed both your names on the title of that property – you may still be entitled to your equitable share of that property in the event of divorce, even though it was a gift or an inheritance made solely to your spouse.
