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Are premarital and gifted assets divisible upon divorce?

Are premarital and gifted assets divisible upon divorce?

Potentially, yes.

As part of any divorce, G.L., c. 208, § 34 allows a trial court to “assign to either husband or wife all or any part of the estate of the other.”  Interpretive decisions teach that a party’s estate includes all property to which a party holds title, however and whenever acquired.   Under this framework, the court may include an inheritance or a gift received by one spouse before or during the marriage - even post-separation - as part of the marital estate for purposes of division under § 34.  Section 34, however, does not require that all assets be treated in the same manner or divided by the court in the same manner.  In fact, the court need not, and may decline to, award one spouse any portion of an inheritance or gift received by the other.  To be sure, the court need not disregard blood-lines and may take the origin of assets into account in dividing the marital estate, and allocating specific assets to a party.

Things a court will surely find significant when determining whether to assign any portion of gifted or inherited assets include, without limitation: (a) whether the inherited or gifted asset has been comingled with other assets or segregated, (b) whether title was held in joint names or only in the name of the recipient, (c) whether the parties had come to rely on the gifts or potential inheritance when financing their lifestyle or planning their retirement, (d) when the spouse received the gift or inheritance, (e) the length of the marriage, (f) the size of the remaining marital estate and (g) each party’s role in managing the gifted or inherited assets.