Rule

• Generally, if one spouse receives property as a gift during marriage, there is a legal presumption that the gift is marital property. However, the other spouse can rebut this presumption with evidence that the gift was not made to both parties, and it was a non-marital gift. If that spouse can convince an Illinois judge the gift was non-marital, then the judge will not divide it equitably as marital property between them.
  
  

Statute

• The Illinois Marriage and Dissolution of Marriage Act, Section 503(a), states that spouses can own marital property or separate property, and marital property is property acquired during the marriage. However, the statutory exception is for "property acquired by gift, legacy or descent." Generally, this includes property given from one spouse to the other and property given to one spouse by a third-party. For inter-spousal gifts, since most marital property is divided equitably, Illinois courts require a higher burden of proof from the spouse challenging the property distribution. In other words, the spouse claiming the property was a gift after marriage must provide "clear, convincing and unmistakable" evidence the property is separate.
  
  

Types of Gifts

• Property transfers can include money, investment property, real property and personal property. If the court decides the gift was marital, then the court may order the spouses to sell the property and divide the proceeds. However, a court can simply award a larger share of other marital property between spouses. Gifts from one spouse to the other are considered non-marital property. To preserve ownership against creditors and to avoid paying increased real estate taxes, spouses may strategically convey legal ownership as a gift to the other spouse. In these cases, courts can decide to order a forced sale and divide the proceeds between them equally.
  
  

Evidence

• Since under Illinois law, marital property is subject to equitable distribution, while gifts are separate property, courts will conduct a case-by-case analysis to determine the proper classification of the gift. The spouse challenging the presumption that a gift after marriage is marital property must be able to convince the court otherwise. For example, an engraving on jewelry may be indicative that the gift is separate property.
  
  

Considerations

• Since state laws can frequently change, do not use this information as a substitute for legal advice. Seek advice through an attorney licensed to practice law in your state.