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Kurt Cobain’s Guitar and Grandma’s Wedding Ring: Defining Marital and Separate Property

by Jon Rotenberg of Hedgepeth, Heredia & Rieder

kurt cobain mtv unplugged 650A guitar that once belonged to Nirvana frontman Kurt Cobain recently was center stage as an interesting point of marital property law. Cobain’s daughter, Frances Bean Cobain, is ending her marriage to musician Isaiah Silva. Silva claims she gave him as a wedding gift one of her father’s most iconic guitars – the Martin D-18E he used on MTV’s Unplugged in one of his last performances.

Of course, Cobain maintains she never meant to gift the guitar to her husband.

One of the biggest challenges in any divorce is division of property. When two people marry, their personal property will be commingled to a large degree. A good pre-nup can make sure that any especially valuable or meaningful property that a party brings into the marriage is protected in case of divorce, but there are a few scenarios that are not so clear-cut.

We don’t know all the details of Silva’s claim, but the burden will be on him to prove that Frances Bean Cobain gave him the guitar as a gift. He has little hope of quantifying it as property acquired during the marriage. To prove it was a premarital asset, all Cobain has to do is show the judge the 1994 album cover on which it appears, “MTV Unplugged in New York.” She married Silva in 2014 and is Kurt Cobain’s only child, so the guitar is easily identified as separate property she brought to the marriage.

Jon Rotenberg HHR 2015 smallReports don’t indicate who currently has the guitar, but it doesn’t really matter. Possession may be nine-tenths of the law, but we are examining that last tenth- ownership. Portable possessions within a marriage can be removed easily by either party, regardless of ownership. Here, the question is not who currently has the property in his or her possession, but who legally owns it.

The Unique Niche of Marital Gifts

This story captures the difficulties that can arise over what constitutes separate and marital property. Gifts given between spouses and received by spouses from third parties occupy a unique niche. When a third party gives a gift to one of a couple, it becomes that person’s separate property, but when one spouse gives a gift to another, in the absence of evidence to the contrary, it becomes marital property and thus subject to division in a divorce.

The dividing lines between marital and separate property can be blurry at the best of times, and vary from marriage to marriage. A solid pre-nuptial agreement can save both parties much grief during a divorce by clarifying who gets what from the outset.