1. The Statutory Definition of Separate Property
Under New York Domestic Relations Law § 236(B)(1)(d), separate property is narrowly confined to:
- Property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse;
- Compensation for personal injuries;
- Property acquired in exchange for or the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse; and
- Property described as separate property by written agreement pursuant to subdivision three.
2. Active vs. Passive Appreciation (Hartog v. Hartog)
In the landmark Court of Appeals case Hartog v. Hartog, 85 N.Y.2d 36 (1995), New York established that appreciation in a separate property asset during marriage becomes marital property subject to equitable distribution if the non-titled spouse made direct or indirect contributions (such as homemaking, child rearing, or career support) that facilitated the asset's growth.
3. Tracing Separate Property Down Payments
When a spouse uses proven premarital or inherited separate funds to pay a down payment on real estate purchased during marriage, New York courts apply the separate property credit doctrine. Upon equitable distribution, the titled contributing spouse is entitled to a dollar-for-dollar separate property credit off the top before remaining equity is divided.