Kurt Cobain's Guitar: The Exclusion of Gifts During Marriage

According to TMZ, Kurt Cobain's daughter is demanding that her estranged husband return one of her father's famous guitars. Frances Bean Cobain filed a claim asking the court to force her estranged husband, Isaiah Silva, to return the 1959 Martin D-18E acoustic. Apparently Silva has been holding onto the guitar since Frances filed for divorce last March.

The six-string guitar is fairly famous as it was one that Kurt played during Nirvana's "MTV Unplugged" session. According to sources, Isiah is claiming that the guitar was gifted to him during the marriage and he should be able to keep it. Frances maintains that she would have never gifted a "priceless family heirloom" and demands that he return it immediately.

In Ontario, the value of gifts or inheritances that you receive from a third party during your marriage are excluded from thedivision of property upon separation or divorce. However, in order to exclude the property, the gift or inheritance must still be in existence on the date of separation, or else there is nothing to exclude.

Alternatively, if a gift or inheritance comes in the form of cash, the cash should be kept separate. The best way to do so is by purchasing a stock that is kept separate from other investments or by locking it into a long term investment. If the cash is put into a regular chequing or savings account, it will likely get mixed into other funds and it therefore becomes difficult to trace the gift or inheritance over time.

In Frances' case, if she were found to have gifted the guitar to her ex-husband, he would not be able to exclude the value from his division of property because the gift was between spouses. However, it is questionable whether Frances would have actually gifted the guitar to her ex-husband given its sentimental value. If it wasn't a gift to her husband and she had possession of the guitar prior to her marriage, then it may qualify as a date of marriage deduction instead.

In order to claim a deduction for property that was brought into the marriage, the spouse claiming the deduction has the onus of proving the value of the property on the date of marriage. Generally, documentary proof is the best way to prove the value of the property. This may include a bank statement or an appraisal. In this case, Frances' would likely need an appraisal to prove the value of the deduction because it is likely that the value of the guitar has substantially increased over time. Unfortunately, if Frances is able unable to prove the value of the asset on the date of marriage, the deduction may be lost completely.

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