Presents Between Spouses: Who Gets Them After a Divorce?

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Family Code Section 852 provides that “(a) A transmutation of real or personal property is not valid unless made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected.”  The caveat is that this section “does not apply to a gift between the spouses of clothing, wearing apparel, jewelry, or other tangible articles of a personal nature that is used solely or principally by the spouse to whom the gift is made and that is not substantial in value taking into account the circumstances of the marriage.”

In essence, community property does not become a spouse’s separate property without a clear writing executed by the other spouse whose interest in the property is adversely affected.  This writing requirement does not apply to gifts between spouses of clothing, jewelry or other personal items not of substantial value.  Generally, the receiving spouse can claim small gifts from the other spouse as his or her separate property.  However, where the gift is of substantial value, it may remain community property and is subject to division during a divorce.

In re Marriage of Steinberger (2001) 91 Cal.App.4th 1449, 1465, the court found that a wedding ring with an estimated value of approximately $13,000.00 gifted by the husband to the wife for their wedding anniversary was community property.  The court relied on Section 852 and the substantial value of the ring to hold that the ring, although was gifted to the wife, did not become her separate property in the absence of a written declaration from the husband giving up his interests in the ring.


****The opinion above is not intended to be legal advice and does not create
any attorney-client relationship between its author and  readers. Please consult an attorney for information or advice specific to your legal issue.****

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