Gifts From Your Spouse: How Are They Handled in California Divorce?


Divorce is often an emotionally charged and complicated process, especially when it comes to dividing assets and property acquired during the marriage. Gifts between spouses can sometimes create unexpected legal complexities in the state of California. In this article, we will explore the impact of substantial gifts given by one spouse to the other during the marriage and how they may be treated during a divorce.

Understanding the Legal Implications of Gifts in Divorce

In California, gifts given between spouses are generally considered separate property and belong to the recipient. However, the situation becomes more complicated when a substantial gift is involved, and there is no express written declaration stating that it was intended as a gift.

What Constitutes a Substantial Gift?

A substantial gift is one that holds significant value, such as expensive jewelry, real estate, vehicles, or substantial financial contributions. These gifts can have a considerable impact on the division of assets during divorce proceedings.

Importance of an Express Written Declaration

To avoid any ambiguity, it is crucial for the donor spouse to provide an express written declaration stating that the gift is intended as such and not subject to reimbursement in case of separation or divorce. This documentation serves as proof that the gift was genuinely meant as a gift and not part of the community property.

The Significance of Separate Property Funds

Suppose the substantial gift was purchased using the funds from the donor spouse’s separate property, such as an inheritance. In that case, the receiving spouse may face further challenges during divorce proceedings.

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Family Code Section 2640 Reimbursement

In California, under Family Code Section 2640, the donor spouse may be entitled to claim a reimbursement for the funds used to purchase the gift from their separate property. This means that the recipient spouse might end up with nothing while the donor spouse takes back the gift or its equivalent value.

Transmutation of Separate or Community Property

California Family Code allows for the transmutation of separate or community property to the separate property of the other spouse under specific conditions.

Requirements for Transmutation

For the transmutation to be valid, both spouses must meet certain requirements. An express declaration must be made in writing, indicating that one spouse’s interest in the property is adversely affected by the transmutation. This documentation helps establish the change in ownership and protects both parties’ interests.

The Lesson about Gifts in Divorce

To avoid disputes over substantial gifts during divorce proceedings, it is advisable to take specific precautions.

The Value of Written Documentation

If you receive a substantial gift from your spouse, delicately request a written declaration confirming that the gift is, indeed, intended as a gift and that your spouse waives any right to reimbursement in case of separation or divorce. Keep this written proof safe, as it can be invaluable during legal proceedings.

The Role of Inconsequential Gifts

If the gift’s value is relatively inconsequential compared to other marital property, it is more likely to be considered the separate property of the recipient spouse. However, without an explicit, written declaration stating that the gift is intended as a gift with no right of reimbursement, the outcome may still be uncertain.

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Gifts exchanged between spouses can have unforeseen legal consequences during divorce proceedings. To safeguard your interests, always ensure there is a written declaration indicating the gift’s nature and the absence of any reimbursement rights. Additionally, be cautious when gifts involve significant value, as they may be considered community property without proper documentation. By understanding and addressing these complexities, you can navigate divorce proceedings more smoothly.


  1. Can I protect my gifts from my spouse during a divorce? Yes, by obtaining a written declaration from your spouse stating that the gift is intended as such, you can protect it from becoming community property.
  2. What happens if there is no written declaration for a substantial gift? In the absence of a written declaration, the substantial gift may be considered community property, subject to division during divorce proceedings.
  3. How can I prove that a gift was intended as such during divorce proceedings? Written documentation, such as a card, letter, or memo, stating that the gift is a genuine gift, can serve as valuable proof.
  4. Is there a time limit to obtain a written declaration for a gift? It is advisable to obtain the written declaration as soon as the gift is given to avoid any disputes later on.
  5. What should I do if I suspect my spouse will claim reimbursement for a gift? Consult with a qualified family law attorney to understand your rights and options in your specific situation.

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