Donative Intent and Premarital Agreements
Many premarital agreements provide that each party’s premarital assets and any appreciation of those assets shall constitute non-marital assets that are not subject to equitable distribution in the event of divorce. The parties to the recent Supreme Court of Florida decision of Hooker v. Hooker executed a premarital agreement which contained this language; however, despite the existence of the agreement, the Supreme Court held that two of the Husband’s premarital properties constituted marital property subject to equitable distribution upon the dissolution of the marriage. The Supreme Court reached this holding after finding that there was “substantial competent evidence” of Husband’s intent to make an interspousal gift of his premarital properties to his Wife.
One of the premarital properties at issue in the case was the parties’ marital residence in Wellington, Florida [hereafter the “Homestead Property”]. The finding that there was substantial competent evidence of Husband’s intent to make an interspousal gift of the Homestead Property was based on testimony that the Wife “treated” the Homestead Property as her own and evidence that the Wife signed the deed to transfer title to the Homestead Property. Specifically, the Supreme Court noted that:
Only … Husband was listed as the seller, but both parties signed the warranty deed transferring title of [Hickstead] to [Hooker Hollow].
The Supreme Court’s consideration of Wife’s signature on the deed as evidence of the donative intent is puzzling because, pursuant to the Florida Constitution, if a homeowner is married, he or she cannot transfer the homestead without the signature of his or her spouse – even if the homestead property was purchased prior to the marriage.
The Hooker decision highlights the importance of ensuring that interspousal gifts are clearly addressed in premarital agreements as failure to do so may result in premarital assets being subject to equitable distribution.