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 Virginia, property acquired during marriage is typically considered marital property, which is subject to division upon divorce. However, gifts from one spouse to another during the marriage are generally presumed to be separate property, belonging solely to the recipient spouse. This includes any income or additional property derived from the gifted property, such as stock dividends or splits. Virginia law does not recognize community property; instead, it follows the equitable distribution principle, meaning that marital property is divided equitably, but not necessarily equally, in the event of a divorce. While Virginia does allow for the transmutation of property, where separate property can become marital property or vice versa, this typically requires a clear and explicit agreement between the spouses, often in writing. It is important to note that substantial gifts might be scrutinized differently, and the intent behind the transfer and the relative financial situations of the spouses may be considered. For real property, any transmutation agreement may need to be recorded to be effective. As laws can be complex and vary based on individual circumstances, consulting with an attorney for specific legal advice is recommended.