Fox Family Lawyers
Cynthia Moseley Fox
Attorney at Law
7751 Carondelet Avenue,
Suite 700
Clayton, Missouri 63105
(St. Louis)

Giver Beware: A Family Heirloom Given to a Son or Daughter Can Be “Lost” in a Divorce

“Charlie” was distraught. His divorce had concluded just a couple weeks earlier and he now realized that his ex-wife was going to keep the handcrafted silver fruit bowl that his mother had given them several years before. It had passed down his mother’s family for three generations so its sentimental value far exceeded its monetary worth, which Charlie estimated was several hundred dollars.

According to his final decree, all household goods, unless listed as his separate property, were awarded to his wife. Just prior to the final hearing, he returned to the marital home, where his wife still lived, to review the possessions and to identify those that were his alone. It was not a comfortable situation and Charlie had rushed through it as fast as he could. Since he had lived separately for several months, he had forgotten about the bowl and didn’t remember seeing it during the visit. (Had his spouse hidden it away?) The bowl never made it onto his list of separate property.

When he returned after the divorce to pick up what was his, the bowl was in plain sight on the foyer table. His heart sank knowing that he had failed to list it as his. Despite his pleas, and an offer to trade other possessions, his ex-wife remained adamant. She loved the bowl immensely and insisted it had been given to them as a couple, not to Charlie alone. That’s when he decided to seek my advice.

I had not represented Charlie in his divorce action, but I had the unhappy task of telling him that his chances of recovering the bowl were nil. Charlie’s memory about the exact circumstances of his mother’s gift was vague; it may have been given to the two of them, perhaps for an anniversary. Even so, he was sure that his mother intended that the bowl remain within the family, but there was no way to confirm this either. His mother had passed away two years earlier. With no evidence, written or testimonial, to prove that his mother had given the bowl only to Charlie, I told him that he had little chance of demonstrating that it had been his separate property.

Charlie’s situation is a cautionary tale for parents everywhere about how prized family possessions can slip into the hands of former in-laws in the event of a divorce. That’s because in Missouri any gift given to just one person in the marriage is presumed to be marital property, but for a few specific exceptions.

For example, “titled” gifts such as a car or real estate are considered separate property if the title bears the name of only one party in the marriage. For untitled items, such as Charlie’s long-lost bowl, the gift should be accompanied by a document identifying the one person intended as the recipient.

Absent written proof, the court is left to decide whether the circumstances of the gift clearly reveal the intent of the giver. For example, was it a birthday gift to one person or an anniversary gift, which the court would likely assume was given to both? Was it the only Christmas or Hanukah gift to the couple or was it specifically tagged for one recipient? Did the parents have a history of never giving gifts to their son or daughter-in-law because of they despised him/her? As even non-lawyers know, “circumstantial” cases are harder to make than ones supported with documentary evidence.

So, let the giver beware: Make it clear, and in writing, who the gift is to when conferring valued family heirlooms to a son or daughter.