Protecting Family Heirlooms During a Divorce

Family heirlooms usually have sentimental value, and sometimes they have considerable monetary value as well. If you are going through a divorce, your former spouse probably does not want your old family photos – but they may want jewelry, art, antiques or other items given to you. These are the kind of objects that couples fight over in the midst of a divorce.

Inherited and Pre-Marital Heirlooms
If an heirloom was inherited before or during your marriage, it is yours after the marriage ends. Inherited heirlooms are not considered a marital asset regardless when it was received.

During a divorce, you may have to establish proof of when and how you inherited the heirloom, so who receives the heirloom is not an issue. Look to family members or perhaps old family photos to help you establish that the item is an heirloom from your kin.

When Your Spouse Increased the Heirloom’s Value
While an inherited or gifted item is not a marital asset per se, if your spouse did anything that increased the value of the heirloom, they might have a claim to it. Say your father gave you a valuable vintage automobile or boat, but it was your spouse who made repairs on it or refurbished it and kept it running. In such cases, it is important to have the item in question professionally appraised.

Many times, it turns out a “valuable” heirloom is not really worth that much in terms of money. If that boat or car is worth only a few thousand dollars, your spouse may give up the claim. If the object is not worth much, but your spouse has a claim due to increasing the value, perhaps just agreeing to give your spouse half the money for it will resolve the issue.

Family Heirlooms and Children
Suppose you gave your daughter-in-law some treasured family jewelry after she married your son. Now they are divorcing, and your son wants these items back. They were gifts, freely given to her, so she has no obligation to return them.

If the couple had children together, family heirlooms can still pass down the family line, so that may ease your distress. If they did not have children together, perhaps she will agree to return the jewelry, maybe in exchange for a piece of marital property both parties want.

However, that is her decision, except in the rare event that the items were given to her with written stipulation of their return in case of divorce, such as in a prenuptial agreement.

Make a List
Perhaps the best way to deal with the heirloom situation in a contentious divorce is having both parties make a list of every item, along with how it entered the marital home.

Just as your spouse should not claim items that do not belong to their family, you should not claim items that came from your spouse’s family.

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Philip Smith Burnham II

Licensed since 1990

Member at firm Burnham Law Group, LLC

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