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If the appreciation of separate property becomes marital property, what percent of the increase will I keep?

New York, NY |

I'm getting married and am wondering what New York laws are, and if I maybe need a prenup.

Attorney Answers 5


No answer. The law in NY is "equitable distribution" which is not a mathematical cut. Over many years, wealthy husbands cheated their wives by hiding their assets from judicial view. So the wife's assets would be cut in half leaving her a fraction of the marital estate.

So the law was rewritten to dispose of a marital estate "equitably" or "fairly" which is not based on percentages of presented documents. So there is no answer to your question without looking at the totality of your marital estate.

Good luck.

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If you have separate property, then It is wise to seek counsel about a prenup. Schedule a consultation with an attorney to discuss your options.

If this answer is helpful, then please mark the helpful button. If this is the best answer, then please indicate it. Thanks. For further information you should see an attorney and discuss the matter completely. If you are in the New York City area, then you can reach me during normal business hours at 718 329 9500 or

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I recommend you protect yourself via a Prenup so the "percentage" will be whatever you agree to now, anywhere between 0%-100%. If you leave it up to the court's discretion upon a breakdown of the marriage, you can be sure you won't like the result. It is easy and relatively inexpensive to deal with this now--not so much if you are in the throes of divorce. Good luck!

Ms. Brown may be reached at 718-878-6886 during regular business hours, or anytime by email at: All of Ms. Brown's responses to questions posted on AVVO are intended as general information based upon the facts stated in the question, and are provided for educational purposes of the public, not any specific individual, and her response to the question above is not legal advice and it does not create an attorney-client relationship. Ms. Brown is licensed to practice law in New York. If you would like to obtain specific legal advice about this issue, you must contact an attorney who is licensed to practice law in your state.

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Boy, this has been a hot topic today. This is a sticky situation and that is why a pre-nup is a good idea. Generally, and please be aware that the exceptions can swallow a whale, passive appreciation is not marital. But, if the appreciation is due to marital inpute, such a marital money to fund a capital improvement, then the appreciation could be marital. This varies from circumstance to circumstance. You also have to be aware that separate property can be transmuted to marital property under the right (or wrong) circumstances. You need to consult with an attorney on your specific situation.

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I agree that appreciation of a separate assets remains so unless there is an active element by the non-titled spouse in causing the appreciation other than "sweat equity." But the way to put your mind at ease is a prenuptial agreement, but it has to be approached delicately, early, and openly with your future spouse so it is not being seen as a muscle move.

If you found this "helpful" or "best answer," please click it with my appreciation. My response is for educational purposes and does not constitute legal advice nor creates an attorney client relationship which requires all the details and a personal conference.

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