Is a Burial Plot Marital Property?

An interesting appellate case from the First District Court of Appeals determined that a burial plot given to the Husband as a gift by the Wife was considered marital property and subject to equitable distribution in a divorce. The Wife in McKee v. McKee received two burial plots during the marriage as gifts from her aunt. The Wife added the Husband to the deed of one of the burial plots. The Wife testified that she did so because she believed the marriage was going to last forever. The trial court made a ruling that the burial plot was non-marital property belonging to the Wife. The First District Court of Appeal reversed the trial court’s ruling and found that the burial plot was in fact marital property.

The appellate court reasoned that inter-spousal gifts during the marriage are considered marital property pursuant to Florida Statutes. The appellate court determined that the Wife’s testimony established that she intended to give the burial plot to the husband. Additionally, the appellate court stated that “all real property held by the parties as tenants by the entireties, whether acquired prior to or during the marriage, shall be presumed to be a marital asset.” The party claiming otherwise has the burden to overcome the presumption that the property is a marital asset. The Wife did not provide any evidence or testimony to that effect. She simply stated that she now does not want the Husband to have the property. That was not sufficient. The general rule being that if you add someone’s name to a property deed, that person becomes an owner of the property. It is almost impossible to overcome that general rule.

Often times assets such as a burial plot are not even considered to be marital assets by the everyday client. It is important that you have an in depth consult with your expert family law attorney to make a thorough determination what is considered marital assets and what is non-marital assets. Clients are often surprised what might be a marital asset.

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