Florida Estate Planning and Probate Law Blog focused on recent case law and planning ideas.

WHAT IS “SEPARATE PROPERTY” IN A PRE-MARITAL AGREEMENT

The Fifth District Court of Appeals in the case of Colino v. Volino, 41 Fla. L. weekly D1990b (5th DCA, August 26, 2016) recently addressed what “constitutes separate property” for purposes of a pre-marital agreement. The agreement in dispute contained the standard “Separate Property” provision that provided “if a party acquires real property in his or her own name it shall be that party's Separate Property.” However, during the marriage, the husband gifted funds, which he was permitted to do under the agreement, from his personal account to his wife. The wife then utilized the funds to acquire a parcel of real property in her name. Eight months later, the wife transferred the real property solely into the name of her husband. The parties subsequently divorced. At trial, the Court found the real property to be the Separate Property of the wife at the time of divorce. The Court based its ruling on the provision that “if a party acquires real property in her own name it shall be her Separate Property.” The Fifth DCA reversed and determined that the real property constituted the Separate Property of the husband. The Fifth DCA concluded that it was the wife's Separate Property when she acquired it and that it became the Separate Property of the husband when wife transferred the real property to him.