The value of gifts or inheritances that you or your partner received during your marriage are excluded from the division of property upon separation or divorce. You may not know, however, that you have to treat those gifts or inherited items in a specific manner in order to take advantage of that exclusion.
When a marriage breaks down, the Family Law Act (“FLA”) in Ontario sets out how a couple’s property is to be shared in the event the couple does not have an enforceable Marriage Contract in place setting out a different regime. The value of some assets, such as a gift or inheritance from a third party, may be treated differently from the couple’s other assets if they meet certain requirements.
The Ontario Family Law Act provides that any assets that a spouse inherits or receives as a gift from a third party during the marriage are excluded from the calculation of the individual’s net family property, provided these assets have been kept separate and exist on the date of separation. An exception to this rule is the matrimonial home, which cannot be excluded from the calculation. In addition, any income or interest on property gifted or inherited from third persons after the marriage will be excluded, but only if the donor or testator has expressly stated that it is to be excluded from the spouse’s net family property. In contrast, the value of gifts or inheritances received by a spouse prior to marriage are deducted from the calculation of the individual’s net family property on the family law valuation date.
Firstly, the gift or inheritance must have been received after the date of marriage. For example, if a spouse inherited a valuable piece of art before marriage, the increase in the art’s value must be shared between the spouses so long as it is still owned by the spouse at the date of separation. If a spouse inherits the piece of art after marriage, he or she is able to exclude from any property division its full value on the date of separation as well as any increase in its value.
If you have ever received an inheritance or gift you will be well aware that these items can very often hold great sentimental value. However, not only can they hold a place in our hearts, these items can also hold significant economic value.
Gifts and inheritances received before marriage are treated the same way as pre-marriage assets. This means the value of the gift or inheritance that was still in existence at the time of marriage belongs to the recipient. If that gift or inheritance still exists when the couple separates and its value has increased, the amount of the increase is divided equally between spouses.
If you acquire a gift or inheritance before the marriage, the increase in the value of this property will be included in your net worth. This will require that you establish the value of the gift or inheritance on the date of marriage and on the date of separation. To best protect yourself, in addition to entering into a marriage contract which specifically addresses these issues, it is preferable to put monetary gifts or inheritances into a separate bank account that is solely owned by the recipient.
Separate property is considered property (either an asset or debt) that belongs to one spouse individually. Separate property is not subject to equitable distribution and its value is not included in the marital estate. Separate property includes property that was owned by a spouse prior to marriage property acquired in exchange for separate property and property that was received by gift or inheritance. It is well established that gifts to a spouse from a third-party are considered the separate property of the recipient spouse.
If you’ve inherited or been given money and kept it apart from funds you shared with your husband (ideally in a separate bank account in your own name and into which you have not also deposited any marital funds), then the money is your separate property, no matter what your husband says. However, if you deposited your inheritance into a joint account, or used it toward a joint purchase with your husband, then most likely it became marital property at that time and now it is subject to division as such.
During the marriage, you and your spouse most likely obtained more property and cash. The property and cash you obtained during the marriage will be presumed to be marital property. The marital property obtained during the marriage is called the marital estate. You and your spouse may exclude certain property from the marital estate by entering into a marital agreement, such as a prenuptial or postnuptial agreement. Without such an agreement, there is a presumption that property acquired during the marriage is marital property, except for inheritances, personal injury/worker’s compensation awards for pain and suffering and third-party gifts.
Gifts and inheritances will be excluded from a spouse’s net family property if they were received from a third person after the date of the marriage, and the donor must have expressly intended to give the gift or inheritance to the spouse alone, rather than to the family as a whole. Generally, any increase in the value of such gifts is not shared. If the gift or inheritance is not shareable, then if it is sold or transferred into another asset, that asset also belongs to the one spouse alone. In addition, any proceeds of sale of such excluded property or traced property should also qualify as excluded property.
If it’s money that you’re inheriting, you might want to consider opening up a bank account under your own name only. You would then deposit the funds with the sole goal of leaving it untouched until you can consult with an attorney. You would then go and get legal advice. By doing so, you will be informed of the best course of action to take and what your rights are. You can then decide and act appropriately.
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