Your client has decided to end the marriage, and your client is
concerned about future financial security. Your client is eager for
reassurance that the other spouse will depart the marriage with the
many gifted assets that your client alone brought into it. On the
other hand, your client may be the other spouse who wants only a
fair share of the inherited assets brought into the marriage by
his/her spouse - assets that your client alone managed and grew
over the course of many years. Either way, it is crucial for you to
understand and explain to your client the basics of "equitable
distribution" of property upon divorce in Massachusetts and, in
particular, the treatment of gifted and inherited assets.
Basics of equitable distribution
The marital estate subject to distribution consists of
all property owned by either property, including pre-marital
In the Commonwealth of Massachusetts, a Probate and Family
Court's authority to distribute property upon divorce is entirely
statutory and governed by M.G.L. c. 208, § 34 (hereinafter Section
34). Section 34 provides, inter alia, that:
In addition to or in lieu of a judgment to pay alimony, the
court may assign to either husband or wife all or any part of
the estate of the other, including but not limited
to, all vested and non-vested benefits, rights and funds
accrued during the marriage1 and which shall include,
but not be limited to, retirement benefits, military retirement
benefits if qualified under and to the extent provided by federal
law, pension, profit-sharing, annuity, deferred compensation and
insurance. M.G.L. c. 208, § 34.
A party's "estate" (as referenced above) is defined broadly to
include "all property to which [he or she] holds title, however
acquired." Rice v. Rice, 372 Mass. 398, 400 (1977)
(rejecting the husband's contention that the trial court lacked
authority to transfer his separate property acquired before the
marriage to his wife upon divorce); see also Baccanti v.
Morton, 434 Mass. 787 (2001) (upholding trial court's
inclusion of premarital assets in the marital estate, despite the
husband's testimony that the parties orally agreed to keep those
assets separate); Drapek v. Drapek, 399 Mass. 240, 243
(1987). As such, the commonwealth is unlike other "marital
property" states that specifically exclude premarital property from
the marital estate subject to distribution. See Moriarty v.
Stone, 41 Mass. App. Ct. 151, 156-57 n. 4 (1996) ("The term
'estate' … includes property obtained by a party before marriage
…"). In fact, assignable assets can even include post-marriage
assets in certain circumstances. See Brower v. Brower, 61
Mass. App. Ct. 216, 218 (2004) (holding that assignable assets can
include portion of teacher's pension accrued after divorce). In a
nutshell, everything is "in the marital pot" for distribution upon
divorce. The more nuanced issue is how that marital pot will, in
fact, be doled out fairly between the parties.
The court has broad discretion in weighing the statutory
factors that must be considered when distributing the estate.
How does the actual distribution work in the absence of a
negotiated agreement? The Probate and Family Court judge assigned
to the case will hold an evidentiary hearing (trial), whereby the
attorney for each party will present evidence (i.e., witness
testimony and exhibits/documentary evidence) relating to each of
the various factors that the court must consider pursuant to
Section 34, namely:
- Length of the marriage;
- Conduct of the parties during the marriage;
- Amount and sources of income;
- Vocational skills;
- Estate, liabilities and needs of each of the parties;
- The opportunity of each for future acquisition of capital
assets and income;
- Amount and duration of alimony, if any, awarded under sections
48 to 55, inclusive;
- The present and future needs of the dependent children of the
- Contribution of each of the parties in the acquisition,
preservation or appreciation in value of their respective estates
- Contribution of each of the parties as a homemaker to the
family unit (discretionary).
These factors "reflect a view of marriage as an implied
partnership for the purposes of distribution of property."
Savides v. Savides, 400 Mass. 250, 252 (1987). In
fashioning a judgment to distribute the marital estate following
trial, the court must make it clear in written "findings of fact"
that he/she considered each one of the "mandatory factors" set
forth in Section 34.2 King v. King, 373 Mass.
37, 40 (1977). Further, the court must provide a clear rationale,
based on its findings, for the judgment reached. See Mahoney v.
Mahoney, 425 Mass. 441, 447 (1997); Bowring v. Reid,
399 Mass. 265, 267-68 (1987) (review requires appellate court to
look for the lower court's findings of fact and rationale; the
decision must flow rationally from the judge's findings).
Clients often ask, "Isn't the length of the marriage the most
important factor?" or "Doesn't the distribution really depend on
much income is available?" No one factor trumps all others, and
"[t]he weight to be accorded each of the § 34 factors in a
particular case is committed to the judge, who has broad discretion
in fashioning a judgment under § 34." Langerman v.
Langerman, 9 Mass. App. Ct. 869, 870 (1980). "Such broad
discretion is necessary in order that the courts can handle the
myriad of different fact situations which surround divorces and
arrive at a fair financial settlement in each case." Rice,
372 Mass. at 401. See also Redding v. Redding, 398 Mass.
102, 107 (1986) (trial judge's decision and the weight accorded to
the respective Section 34 factors will not be reversed unless the
judgment is "plainly wrong"). The practical effect of this
far-reaching discretion is that two different judges, evaluating
the very same evidence, could arrive at very different judgments -
particularly in mid-length marriages, where the equities may be
more nuanced than those presented in a short-term or long-term
marriage. For instance, it is easy to understand why a judge might
opt to "split everything down the middle" in a 40-year marriage, or
to let each party "walk out with what he walked in with" following
a two-year marriage. But what happens in a 12-year marriage where
there are various assets, inherited or otherwise? Given this
uncertainty, the marked increase in the use of prenuptial
agreements to protect familial wealth is not surprising.
There is no presumption of a 50/50 distribution of the
Unlike some other states that have adopted an equitable
distribution theory, Massachusetts does not have a statutory
presumption in favor of a 50/50 distribution. There is no specific
formula that must be followed in determining an equitable division
of marital property, nor is there any precedent requiring an equal
division of assets (even in a long-term marriage). See
Handrahan v. Handrahan, 28 Mass. App. Ct. 167, 168 (1989)
("mathematical precision" isn't the test); Cabot v. Cabot,
18 Mass. App. Ct. 903 (1984) (no specific financial formula
requiring precise parity in an equitable division of the marital
estate). Rather, "[t]he parties' respective contributions to the
marital partnership remains the touchstone of an equitable division
of the marital estate." Moriarty v. Stone, 41 Mass. App.
Ct. 151, 157 (1996). The goal is to achieve an equitable division
of the parties' assets, not necessarily an equal division. See
Williams v. Massa, 431 Mass. 619, 626 (2000).
The court has discretion to determine the date for
dividing the marital estate.
Fixing the end date of the marriage (for the purpose of
determining what can be included in the marital estate) "is best
left to a case by case analysis." Davidson v. Davidson, 19
Mass. App. Ct. 364, 376 (1985). In many (if not most) cases, the
court will consider the Section 34 factors and divide the marital
estate as of the date of the divorce. See id. at 375-76.
This is particularly true if the parties are separated but one of
them is still providing a non-economic contribution by caring for a
child. See DeCastro v. DeCastro, 415 Mass. 787 (1993). Yet
in certain instances (such as a lengthy separation), the court will
value an asset at the date of separation where there have been no
subsequent contributions. See Savides, 400 Mass. at 252;
Daugherty v. Daugherty, 50 Mass. App. Ct. 738 (2001).
Treatment of gifted, inherited and pre-marital
The Supreme Judicial Court has flatly rejected any rule
that gifted and inherited assets should inure to the spouse who
brought them into the marriage upon divorce. See Williams v.
, 431 Mass. 619, 626 (2000) (noting that Massachusetts
"has no hard and fast rules" on the allocation of gifted and
inherited assets in divorce proceedings, unlike many other states).
Gifted and inherited assets are treated like any other property, in
that the Probate and Family Court has "considerable discretion" in
determining their distribution. Drapek v. Drapek
Mass. 240, 243 (1987). Yet while the commonwealth does reject any
"notion that inherited wealth should remain in blood lines,"
Bacon v. Bacon
, 26 Mass. App. Ct. 117, 123 (1988) (Kaplan,
J., concurring), the Probate and Family Court will look very
closely at the overall "contributions" of the party who did not
receive the gift/inheritance to the marital partnership and/or to
the gifted/inherited assets (such as by managing those assets or
helping them appreciate in value). In that regard, the case law
suggests that the longer the marriage, the more likely that the
court will view the parties' contributions to be relatively equal
(and therefore distribute the gifted/inherited assets, rather than
setting them aside for the party responsible for acquiring them).
See Denninger v. Denninger
, 34 Mass. App. Ct. 429 (1993)
(error to limit husband's share of wife's inheritance to 15 percent
after 27-year marriage); Comins v. Comins
, 33 Mass. App.
Ct. 28 (1992) (husband assigned 46 percent of estate derived of
gifts from wife's family after a 48-year marriage).
The seminal case involving gifted/inherited assets in
Massachusetts is Williams v. Massa, 431 Mass. 619, 626
(2000). The parties in Williams, who had two children
together, had been married for 19 years when they separated in
1993. Id. at 620-21. They lived a comfortable middle-class
lifestyle, largely as a result of the husband's gifted/inherited
assets (including stocks and bonds gifted by his parents prior to
the marriage, and interests in family trusts). Id. at
620-21. The husband worked as the CEO of the family's closely-held
business, and the wife had not worked outside of the home since the
birth of the parties' first child. Id. at 621.
Following a trial on the distribution of the estate, the court
made explicit and detailed findings as to the husband's extensive
contributions to the marriage and the wife's shortcomings in this
regard. The trial court found that the husband was the primary
breadwinner (running the family business), the primary homemaker
and was primarily responsible for taking care of the children's
routine care as they got older. Id. at 624. He also
managed the gifted/inherited assets (which, the court specifically
noted, were kept separate from other assets acquired during the
marriage) and made all investment decisions. Id. at 625.
In short, the husband's contributions to the marital enterprise in
Williams far exceeded those of the wife (who had issues
relating to mental health and interpersonal relations; who had
alienated the parties' daughter from the husband; and who was
described in a manner that suggested she was lazy). Based on these
findings, the trial court awarded the husband all of his inherited
and gifted assets (totaling $2,725,194) and 26 percent of the
non-inherited assets (totaling $507,040) after the evidence
reflected "no special circumstances which would justify an
assignment to the wife of the husband's inherited or gifted
property." Id. at 625. The wife was awarded alimony and 74
percent of the non-inherited assets (totaling $1,443,115).
Id. at 624. The wife appealed, claiming that the trial
court utilized an improper "special circumstances" test to
distribute the estate.
The Supreme Judicial Court affirmed the lower court's decision,
rejecting the arguments that (i) the trial court improperly
excluded the gifted and inherited assets from the marital estate,
and (ii) the trial court imposed an improper test ("special
circumstances") instead of the Section 34 factors in dividing those
assets. Id. at 620. The SJC found that the lower court properly
considered the statutory factors set forth in G.L. c. 208, §34,
especially the fact that the husband's contributions to the marital
partnership "greatly exceeded" those of the wife. Id. at
627. Further, the SJC found that the trial court was well within
her discretion in considering the source of the gifted/inherited
assets (the husband's family, pre-dating the marriage); each
party's role in managing the gifted and inherited assets; and the
fact that these assets were kept separate from other assets
acquired during the marriage. Id. at 627.
The Williams case thus elucidates several important
factors that the court will consider in distributing
The source of the inherited assets (i.e., a willingness to
"sequester" assets to the party responsible for acquiring them,
when a balancing of the Section 34 factors - particularly conduct -
would make it equitable).
Each party's role in managing the gifted/inherited assets
(suggesting that a party not responsible for acquiring the
gifted/inherited assets may be more likely to receive a portion of
the same if he or she is actively involved in the management of the
Whether the gifted/inherited asset was kept separate from the
other marital assets (suggesting that such assets are more likely
to be equitably distributed if there is some co-mingling,
particularly in a long-term marriage).
Still, the tone of the Williams decision suggests
that the lower court found the wife's behavior downright
distasteful. One has to wonder if the husband would have been
awarded all of his gifted/inherited assets if the wife had not been
so apparently "unlikeable" and if the marriage hadn't been so
The treatment of gifted and inherited assets - and the mandate
to focus on the parties' contributions to the same - was also
carefully addressed in Bacon v. Bacon, 26 Mass. App. Ct.
117 (1988). In Bacon, the wife had gifted/inherited assets
of $3,020,552, consisting of property acquired for the wife's
benefit by her family prior to the marriage. Id. at 118.
When the parties married, the wife was the beneficiary of a trust
that provided her with income of about $20,000 per year; when the
trust terminated during the marriage, she received significant
distributions. Id. at 119. The assets grew over the years
until the time of the parties' divorce, largely due to inflation
and the addition of dividends/interest to the principal.
Id. The husband did little to appreciate the value of
these assets. Id. The marital estate also included a
marital home, which had equity of $865,621; the home was purchased
and improvements were made with the wife's gifted/inherited funds.
Id. at 120. The lower court noted that the husband was
self-supporting, had adequate housing, and had been abusive during
the marriage. Id.
The Appeals Court in Bacon affirmed the lower court's
decision, permitting the wife to retain the vast bulk of the assets
traceable to the corpus of the trust created for her by her
biological family and ordering the husband to convey to the wife
his interest in the marital home (which had been purchased with her
gifted assets). Id. at 118. Like the SJC in
Williams, the Appeals Court emphasized the importance of
the parties' respective contributions to the gifted/inherited
assets - and focused on the distribution of the marital estate as a
manner of correcting an imbalance. Id. The Appeals Court
Disparity of contribution[s] within the marriage may be
addressed by a close judicial examination of particular facts on
the case presented. Such an examination should reveal whether the
marriage has been a true partnership characterized by team effort,
or whether the burdens have been unequally allocated. An imbalance
in the assumption of responsibilities and burden[s] is an
indication that one spouse has failed to contribute. The discretion
to make an equitable rather than an equal division of property
enables the trial judge to deal flexibly with the problem of
Id. (citing Inker & Clower, "Towards
a New Justice in Marital Dissolution: The Massachusetts Statutory
Scheme and Due Process Analysis," 16 Suffolk U.L. Rev. 907, 935-936
(1982)). The failure of the husband in Bacon to make any
notable contribution to the acquisition, preservation or
appreciation of wealth which the wife brought to the marriage, or
to homemaking, was critical in allowing the wife to keep most of
her inheritance. Id.
However, the reality is that an imbalance of contributions is
not readily apparent in most marriages. In Baccanti v.
Morton, 434 Mass. 787 (2001), for instance, the parties had
been married for nine years when the wife filed for divorce.
Id. at 789. The marriage was traditional in nature, in
that the husband was the primary breadwinner and the wife was
primary caretaker of their child and the primary homemaker. Id. at
788. Following trial, the trial court distributed the marital
estate on a 50/50 basis and thereby assigned the wife portions of
the husband's premarital assets. Id. at 789. On appeal,
the husband claimed that the lower court failed to make findings as
to each of the requisite Section 34 factors and that the assignment
of the husband's pre-marital assets to the wife was an abuse of
discretion. Id. at 790, 793. The Appeals Court upheld the
decision, noting that the lower court "determined that an evenly
divided distribution of marital property was most equitable in
light of the parties' contributions to the marital enterprise, the
length of the marriage, and their ability to obtain future income
and assets" despite the fact that the husband was the one who
brought the assets into the marriage. Id. at 793.
The existing case law demonstrates that the treatment of gifted
and inherited assets upon divorce is highly case-specific (i.e.,
driven by the unique facts of each case). Nevertheless, the
following trends are apparent:
The longer the marriage, the more likely that gifted and
inherited assets will be distributed in some manner between the
A gifted or inherited asset is more likely to be distributed
between the parties if it has been "woven into the fabric" of the
marriage (for example, the couple historically met their living
expenses off of income generated from an account gifted by one
"Contribution" seems to be particularly important in the context
of gifted and inherited assets. The spouse who did not
receive the gifted/inherited asset will be more likely to benefit
from it if he/she has historically been actively involved in
managing or caring for the asset (for example, overseeing an
investment portfolio and paying taxes on the income generated, or
maintaining/improving a home that had been gifted).
If the divorcing spouses (particularly in a long-term marriage)
had planned on using a gifted/inherited asset (whether principal or
income) to finance retirement, then the "non-gifted" spouse who
relied on that asset is more likely to share in the distribution of
Despite case law rejecting the idea of "bloodlines," there seems
to be, in practice, a hesitancy to use divorce as a vehicle for
transferring wealth across families. If a court awards a spouse all
or nearly all of his/her gifted and inherited assets, it will often
award the "non-gifted" spouse a disproportionate share of the
remaining marital estate to cushion the blow.
Assets that are available to a spouse for his/her use are often
included in the marital estate subject to distribution, even if he
or she does not technically control the asset. See Comins v.
Comins, 33 Mass. App. Ct. 28 (1992) (holding that the trial
court properly included in the marital estate the wife's interest
in a trust that had been settled and funded by her father, the
terms of which allowed the trustee in his sole discretion to pay to
the wife so much of the principal and interest deemed advisable for
her comfort and support).
Even non-vested, contingent interests (such as a remainder
interest in a family trust) can be included in the marital estate
and subject to distribution in certain circumstances, provided that
future acquisition is fairly certain (not remote or speculative).
See S.L. v. R.L., 55 Mass. App. Ct. 880 (2002) (holding
that interests in trusts that depended on the wife's surviving of
her mother were properly included in the marital estate, even
though discretionary powers to invade principal were given to the
trustee); compare D.L. v. G.L., 61 Mass. App. Ct. 488
(2004) (husband's interest in trust was too remote to include in
estate, where his interest would vest only if his father died by a
date certain and the husband survived him). If a court finds such
an interest to be remote or speculative, it will still usually
consider it under the Section 34 criterion of "opportunity of each
for future acquisition of capital assets and income."
A potential inheritance will not be included in the marital
estate for distribution, as it is a mere "expectancy."
Davidson, 19 Mass. App. Ct. at 374.
In light of these considerations, it is imperative that your
client tell you all that he/she knows (and provide any available
documentation) about the source of any gifted/inherited assets;
your client and the other spouse's use, or sequestration, of those
assets during the marriage; and your client and the other spouse's
contributions to both the gifted/inherited assets and the overall
1Accrued during the marriage" should not be read as a
"marital property" limit on the power of the court to distribute
2The text of Section 34 states that the court "may"
consider the two so-called "discretionary factors" - that is, (1)
the contribution of each of the parties in the acquisition,
preservation or appreciation in value of their respective estates,
and (2) the contribution of each of the parties as a homemaker to
the family unit. In practice, these factors are almost always
considered and awarded significant weight.
3See also Denninger v. Denninger, 34 Mass. App. Ct, 429,
434 (1993) (rejecting disproportionate distribution of marital
estate to the wife after a 27 year marriage that produced two
children, and stating "[i]t is difficult to understand why the
husband should share so little of the run-up in value of the
marital residence, the consequence of market factors, or of the
investment portfolio, whose source was the wife's parents, but to
whose growth the husband made at least some contribution by helping
to pay taxes on the portfolio income.").