Real property (real estate) or personal property (money, jewelry, art, stocks, bonds, etc.) given by one spouse to the other spouse during marriage is generally presumed to be a gift, and is the receiving spouse’s separate property. Such a gift includes all income and property from the gifted property—such as stock splits resulting in new shares of stock, and stock dividends paid. Because such transfers of property are separate property owned by the receiving spouse, the spouse who gave or gifted the property during the marriage generally cannot recover it or seek a credit or offset for it against the marital or community property.

But laws on spousal gifts during marriage vary from state to state, and especially with gifts that are substantial in value in relation to the income and assets of the spouses. And in some states the character of property as (1) separate property or (2) community or marital property can be permanently changed if there was a transmutation of the property by written agreement of the parties—an agreement in which the property was transmuted from community property to separate property, for example. A transmutation of real property may have to be recorded in the county records to be effective.

Laws regarding the characterization of property given by one spouse to the other spouse during marriage, and any transmutation of the property, are generally located in a state’s statutes, and often in the family or domestic relations code.

In West Virginia, property acquired during the marriage is typically considered marital property, which is subject to equitable distribution in the event of a divorce. However, gifts from one spouse to another during the marriage are generally presumed to be the separate property of the receiving spouse. This includes any income or additional property derived from the gifted property, such as stock splits or dividends. West Virginia does not follow community property laws, which are present in some other states, but rather follows equitable distribution principles. This means that while the gifted property may be considered separate, the overall division of property during a divorce aims to be fair, though not necessarily equal. It is important to note that the characterization of property as separate can be altered through a process known as transmutation, which typically requires a written agreement between the parties. For real property, such an agreement may need to be recorded with county records to be effective. As laws can vary and the specifics of property division can be complex, consulting with an attorney for individual circumstances is advisable.