Gifted property – Can Ex Reach it?

Gifted property – Can Ex Reach it?

My parents gifted me land for the sum of one Dollar. My name is listed as grantee on the deed, but it says "a married person". My name appears alone on the property tax bill. My estranged is trying to claim the land as his can he?


Your parents gave you a gift of property. The $1 is most likely just recited consideration to assure the proper transfer of the property, nothing you actually paid. In most states, if you have property that was received by gift it remains separate property (sometimes referred to as "immune"). If, however, property someone receives as a gift is mixed up with marital assets (called "commingled") it can loose its character as separate property and an ex spouse may in fact have a claim on it. This frequently occurs with cash and securities that get commingled with other marital accounts (e.g., you're gifted a stock account which you keep separate, but you accidentally deposit your spouse's earnings into the account a few times and pay income tax on the earnings of that account from a marital checking account). How much "mixing" is necessary to taint a property is an issue for a local matrimonial attorney to advise you on.

The indication in the deed that you are "a married person" is really an identification of who you are, and probably a result of local real estate custom. It would seem unlikely that such an identification should give your ex husband any rights in the property. But again, you must confirm this with a local (i.e., in your state since laws vary considerably from state to state) that is also familiar with real estate law.

Now, all that being said, do you still potentially face a risk of challenge from your ex? Maybe. If you paid the carrying costs for the property (property taxes, interest if there is a mortgage, maintenance) from a joint checking account (or worse, your husband paid it). What if your ex mowed the lawn and did other maintenance on the property? If the property has a house on it (you really didn't give much detail) and your ex helped rent it, find a tenant, etc. that might give him more claim.

So, the deed alone probably shouldn't create a problem (but verify this with your divorce attorney -- don't go through a divorce without an attorney expert in matrimonial matters at your side), there still may be other issues.

Now, just like the Shamwow commercial.....we're not done yet!

Even if you get through the hurdle of the deed giving your ex any rights, and you fend off the challenges based on your ex mowing the lawn, and your having paid income tax on the earnings from the property from a joint marital checking account, and all the other "what ifs" above, you're not "safe" yet (hey, the new episode of American Idol just started). If you end up in court and a judge evaluates the assets and income available to each of you in determining the property settlement, child support (if you have kids, you didn't say) and alimony (sometimes called separate "maintenance", etc.), the fact that you own a valuable property may well enter into the analysis. So, even if you get through all the hurdles and your ex cannot make a direct claim on the property, he might be able to do an end run (Super Bowl is Sunday!) and effectively get some benefit from your owning the property in the trade off and horse trading that typifies most divorce settlements.

We're not done yet! Did you have a prenuptial agreement, postnuptial agreement or other agreement with your ex about the property? If so, be sure to have your matrimonial attorney review those documents as they might determine the outcome of the entire issue.

Now, for other readers going this this Q&A (too late for you), the real issue is how do you do it right? The better way to have handled the gift of property would be to have:

  • Had a prenuptial agreement (or if already married a postnuptial agreement) specify that your then husband had no claims or rights in or to the property, have him acknowledge that the property was a gift.
  • Your parents could have gifted the property to a lifetime trust for you instead of directly to you.
  • Plan to assure that your then husband could not participate in the management or operation of the property.
  • Plan to assure that the income and the expenses (including the payment of income taxes on any earnings attributable to the property) are not paid or commingled with marital assets (although just commingling earnings might not taint the property itself).

So, see a matrimonial attorney and discuss all the issues in this hypothetical answer. For other readers, plan ahead, even if it takes some time and effort and incurs some cost.

Good luck!

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