Feb 12, 2019

Love is in the Air!

Kimberly Cook

Valentine’s Day, celebrated annually on February 14, is recognized as a significant celebration of romantic love around the world. It is the occasion in which many couples express their love for one another with the exchange of flowers, cards, candy, and, in some cases, a significant gift.  Whether it is surprising a loved one with an engagement ring, or a memorable gift such as a family heirloom, these romantic or grand gestures should be carefully considered since sometimes, love can be fleeting.

Scroll through any social media site and there are images of big smiles showing off even bigger engagement rings! Yet, before you “give” or “accept” a ring from your Valentine, be aware that the engagement ring may likely be considered a gift that is conditioned upon getting married.  Consider the recent announcement that the engagement between Paris Hilton and Chris Zylka has been called off.  The question on everyone’s mind with Hilton’s announcement was, “who gets to keep that massive engagement ring valued at $2 million dollars?”  In that case, it has since been reported that Paris, the likely purchaser of the ring, is keeping the ring. In most cases, however, the rightful owner of the ring actually depends on the state where you live.  For instance, in Illinois, if the recipient terminates the engagement or if the engagement is mutually terminated, then the person giving the ring is entitled to the return of the engagement ring.  Illinois is similar to many other states that have been following a “no fault” approach to the engagement ring issue when an engagement is called off.  Under the “no fault approach,” the Court does not consider which party was at fault for terminating the engagement in determining who gets to keep the ring. Thus, this modern trend in most states now rejects the “fault based” approach where the person who is at fault for the breakdown of the relationship loses the right to the ring.  The “no fault approach” is based on the premise that the person giving an engagement gift is entitled to recover any of those gifts, including an engagement ring, since the gift was given as conditional of the marriage. Thus, when the condition (i.e. marriage) is not met, the recipient no longer has a right to retain the gift. 

Married couples too should be mindful this Valentine’s Day! Before you gift a family heirloom or treasured memento, let Francis Bean Cobain serve as a cautionary tale.  Francis Bean Cobain, the daughter of late Nirvana frontman Kurt Cobain, married Isaiah Silva in 2014.  The parties’ filed for divorce in 2016 which was finalized in 2018. A major issue in the divorce was whether Francis gave Isaiah her father’s iconic Martin guitar as a gift during their marriage. The Martin guitar, reportedly worth millions, was played by the late Kurt Cobain during this MTV Unplugged performance, reportedly his last televised performance before his death.  Despite Francis’ claim to the guitar as her inheritance, the Court ruled that Isaiah is entitled to keep the guitar based on the position that it was given to him as a gift which he has a right to keep. Thus, the transfer of property from one spouse to another creates a presumption that the transfer was a gift; even if the property was an inheritance or other property owned prior to the marriage.  

Similarly, at the time of divorce, a spouse seeking to reclaim ownership of the transferred item, bears the burden of proving the “donative intent” at the time of transfer.  Donative intent means a “conscious desire to make a gift” which is different from giving something to someone by mistake or under duress.  Since intent is determined by a case-by-case basis, with the Court relying heavily on the testimony of the parties surrounding the alleged gift to prove or deny intent, spouses should be mindful when giving a gift to a spouse that he or she may actually want returned if the marriage fails.

Perhaps if you are considering engagement or marriage, or questions about protecting ownership of a family heirloom, the best “gift” you can give yourself may be speaking with a lawyer beforehand. 

Happy Valentine's Day!

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