McDonald & Kanyuk, PLLC
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Gifted or inherited assets are not, however, the products of an economic
partnership. Many parents and grandparents feel that an in-law should have no legal or
moral claim against the family legacy. This is a particular concern for our wealthy clients
who own family businesses or special “heirloom” type assets which will pass to their
descendants via lifetime gifts and deathtime inheritances. Unfortunately, we all know
there are some cases in which results-oriented suitors marry for money and not love,
seeking a post-divorce life of leisure subsidized by wealth to which they can claim no
birth rights. Such concerned clients often ask us: “Are ‘family’ assets protected under
the New Hampshire divorce laws, and if not, will a trust or other structure achieve our
protective purposes?” Answering that question requires us first to explain the basics of
the New Hampshire laws concerning the division of marital property.
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New Hampshire’s “All Property”, “Equitable Division” Marital Property
Regime. Under New Hampshire law, a judge has broad discretion in ordering an
“equitable division” of the “marital estate” between husband and wife. Unlike many
other states, New Hampshire is not a “separate property” jurisdiction. This means that all
assets of the divorcing parties, including those acquired prior to the marriage, assets titled
in the name of one party alone, and assets acquired by gift or inheritance, are included in
the marital estate and potentially subject to division. There is a presumption that an equal
division of the parties’ properties will be equitable. A judge ordering an unequal division
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This memorandum assumes that the client lives in New Hampshire, and his or her children will also live here
with their spouses, such that New Hampshire law will govern their marital property rights in the event of
divorce. If a divorcing child lives in a state other than New Hampshire, the laws of that state will probably
govern the division of gifted or inherited assets. Most other states offer more protection for gifted or inherited
assets – held in trust or owned outright by a divorcing heir or donee -- than does New Hampshire, either by
placing them completely off-limits as the separate property of the donee or inheritor spouse, or protecting only
gifted or inherited assets acquired prior to the marriage. Because New Hampshire’s rules offer less protection,
any steps you or your children take as described in this memorandum to protect family wealth under our laws
should provide protection (or at least not sacrifice any protection otherwise available), regardless of where the
children may settle, marry and divorce.