A legal note from Marshal Willick about the law concerning engagement rings in Nevada – how and when are they considered gifts, and under what circumstances they must be returned to the giver.
This is a surprisingly consistent source of inquiries, and litigation, and has been so for the decades that I have been practicing family law; it seems likely to continue being a topic of interest to many, and there are more variations in fact patterns, and results, than might be thought.
I. THE ISSUE OF ENGAGEMENT RINGS AS PROPERTY
If an engagement is canceled or a couple marry and divorce, does an engagement ring ever have to be returned? There is no universal answer, and the outcome can depend on a great number of things, the most important being whether the wedding occurred. If it did not, perhaps who called the wedding off and why could be relevant. Once a marriage occurs, the results are more predictable – but still not universal.
These questions are answered in different ways in different places, and there are many “special circumstances” that might not have seemed important until a judge is considering the question. Related “jewelry” issues also come up upon divorce and deserve some mention; it may make a difference which party bought the jewelry, with what money, and why.
II. A SURPRISINGLY ANCIENT HISTORY
Archeologists and anthropologists have suggested that ornamentation with beads and shells is incredibly ancient, perhaps predating our species, and in some cases involved using primitive tools to hollow out and put holes in decorative objects. It is not unreasonable to believe that rings of some sort could have been around since the days of homo Erectus some 2 million years ago.
For most of the history of modern humans, we have been concerned with regulation of relationships between bonded pairs. Some anthropologists even consider pair-bonding one of the defining characteristics marking the evolution of our species in differentiation from our hominid ancestors and cousins. See, e.g., Nicholas Wade, Before the Dawn: Recovering the Lost History of Our Ancestors (Penguin Press, 2006).
The history of the evolution of “marriage” as an institution is beyond the scope of this note, but in broad strokes, it may be said that even the most ancient known societies needed a secure environment for the perpetuation of the species, a system of rules to handle the granting of property rights, and the protection of bloodlines. So it is likely that rings have been given from one member of a couple to the other for far longer than is made out by recorded history.
Marriage of one sort or another has existed in cultures as far back as we have been able to uncover them, and “engagement rings” existed at least as far back as ancient Egypt. It was Rome, however, that gave us the earliest really well-regulated practices known today of marriage (and of divorce, but that is a topic for another day).
By 2000 years ago, it was common in Rome for wedding engagements to be marked by the man giving the woman a ring, often of iron; later those rings included carved imagery of clasped hands, and were sometimes made from precious metals and adorned with jewels.
After the fall of Rome, marital practices in the West devolved to the level of tribal or local custom, and the expansion of the Christian Church over the following centuries did little to change those practices. Most marriages were arranged, by those in a position to secure economic partnerships, or parents or clans. Yet engagement rings persisted, and were even mentioned by name in some codifications, such as the Visigothic Code of the 650s C.E.
The early Catholic Church embraced the practice of giving engagement rings and by medieval times the practice dovetailed with religious edicts prohibiting “secret weddings” and requiring marriages to be publicly announced.
Many commentators have attributed the advent of diamond engagement rings to a political marriage in 1477 between an archduke of Austria and a rich French heiress, which practice became all the rage among the nobles and the aristocracy of the time. It survived the Protestant Reformation and eventually percolated out to the rest of society.
It was only in 1857 – nearly a century after the American Revolution – that the English Parliament transferred jurisdiction over divorce from the ecclesiastical courts to the then-new civil courts. This is relevant because the common law received in this country from England was the common law as it existed upon the founding of the United States, and thus at a time when jurisdiction over matters of marriage and divorce still belonged to the ecclesiastical courts. The Nevada Supreme Court has held that the law of marriage and divorce, as administered by the ecclesiastical courts, is a part of the common law of this country, except as it has been altered by statute. Wuest v. Wuest, 17 Nev. 217, 30 P. 886 (1882).
So all of that history, from Rome though the Germanic tribes through the early Christian Churches, is part of the “law” informing the modern law of engagement ring gifts in Nevada.
III. NO CONTROLLING NEVADA AUTHORITY
The only Nevada case explicitly discussing an engagement ring in the context of a divorce case appears to be Valverde v. Valverde, 55 Nev. 82, 26 P.2d 233 (1933), in which the Nevada Supreme Court reversed a divorce granted to a husband under the then-applicable ground of “cruelty” of the wife, recounting along with a lot of other trial evidence that the husband had given his paramour an engagement ring and done a lot else to try to provoke the wife into divorcing him.
The last published article on the subject in Nevada was apparently in the Nevada Lawyer by Mark Lichtenfeld in 1996. Reviewing case law from around the country, the article observed that if a ring is given in contemplation of marriage, the “overwhelming body of case law” stated that it was a completed conditional gift and the separate property of the recipient; if the engagement was broken, for whatever reason, the ring was to be returned – a result the author called “no-fault engagement.”
IV. ALMOST ALWAYS, IF THE MARRIAGE OCCURS, THE RING IS THE RECIPIENT’S SEPARATE PROPERTY
There are a few special circumstances, discussed below, but usually once a marriage occurs, the “condition” of the conditional gift has been fulfilled, and the ring is the separate property of the recipient. See Winer v. Winer, 575 A.2d 518 (NY App. Div. 1990). The law of conditional gifts is recognized in Nevada, see School of Theology v. Faith Communications Corp., 98 Nev. 117, 642 P.2d 590 (1982), and should be expected to lead to the same result in an engagement ring case.
What if there is a later annulment? Again, there is no on-point authority, but the same result (completed gift) looks likely from the cases most likely to be analogized. See Shank v. Shank, 100 Nev. 695, 691 P.2d 872 (1984) (marriage ceremony by wife terminated first husband’s alimony obligation, and later annulment of that marriage did not resuscitate the first husband’s obligation regardless of whether the second marriage was void or only voidable); Williams v. Williams, 120 Nev. 559, 97 P.3d 1124 (2004) (in annulment proceedings, the property to be divided between putative spouses is that which accrued during the putative marriage).
V. VARIATIONS IN RESULTS IN “BROKEN ENGAGEMENT” CASES AROUND THE COUNTRY; THE QUESTION OF FAULT
On one extreme, the law of Montana apparently treats engagement rings as “unconditional gifts” which are retained by the recipients no matter what happens after they are given. There may be other jurisdictions following the same or similar authority.
A good example of the modern, apparently majority “no-fault” approach is the New Jersey case of Aronow v. Silver, 538 A. 2d 851 (NJ Super. Ct. Chancery 1987), where the court found that the engagement ring had to be returned no matter who broke off the engagement or why, because “the concept of no-fault divorce must have as its predicate the concept of no-fault engagement.” Such courts find that result (returning the ring to the donor) is required even when the donor is clearly at “fault” for the broken engagement. Vigil v. Haber, 888 P.2d 455 (N.M. 1994).
While counts vary, at least 13 states seem to hew to this line, including Illinois, Iowa, Florida, Kansas, Michigan, Minnesota, New Jersey, New Mexico, New York, Ohio, Pennsylvania, Tennessee, and Wisconsin.
Some decisions to the contrary exist where there is evidence – or at least the allegation – that the donor “unjustifiably breaches” the marriage “contract,” in which case the ring could remain with the recipient essentially as a form of damages. See Spinell v. Quigley, 785 P.2d 1149 (Wash. App. 1990). Texas apparently follows the same reasoning; Colorado land-transfer cases appear to do so as well. See Boydstun v. Loveless, 890 P.2d 267 (Colo. App. 1995). This is sometimes called the “traditional view,” and was far more common decades ago.
Even being a no-fault divorce state does not mandate that a state will follow the law of no-fault engagement ring return. Since 1939, California – an “equal division” community property state like Nevada – has had a statute on the books stating that the ring or its value should be returned if the recipient calls off the wedding “or it is given up by mutual consent” if that result is “found by a court or jury to be just.” Cal. Civ. Code § 1590. This implies that if the donor calls off the wedding, the ring remains with the recipient, which case law has apparently confirmed.
In one unusual circumstance, even the “no-fault engagement” states would apparently permit a recipient to keep an engagement ring if the donor died prior the wedding, despite efforts by the donor’s estate to recover it. Presumably, an exception to that exception would be applied if the reason for the donor’s death was the recipient’s action. See Mack v. Estate of Mack, 125 Nev. 80, 206 P.3d 98 (2009) (discussing “slayer statutes”).
VI. SPECIAL CIRCUMSTANCES: HEIRLOOMS
There appears to be some exception to otherwise controlling state law where the engagement ring is considered a family heirloom. In one Oregon case, the court held that where there was good evidence that a ring (or in this case, the diamond in a ring) was considered a family heirloom to be returned if the relationship failed either before or after marriage, that intention could be honored. In the Matter of Ewing and Harrison, 136 P.3d 1157 (Ore. Ct. App. 2006).
Realistically, such cases should probably be viewed as involving agreements other than conditional gifts, and a matter of enforcing those agreements. The lesson to be learned from the existence of the cases is that a written memorialization of intent, in a premarital agreement or otherwise, is probably a good idea if there is any possibility that either party might want some future court in some future circumstance to enforce the intention of the parties at variance from any “general rule” that would otherwise apply.
VII. SPECIAL CIRCUMSTANCES: WHEN ONE PARTY IS ALREADY MARRIED TO SOMEONE ELSE
One odd sub-set of cases involves “broken engagement” cases in which one of the parties to the engagement was still married to someone else when the engagement ring was given. At least in a few states, courts have been unsympathetic to donors in such cases, holding that no matter who broke off the engagement, the recipient could keep the ring, because “conditioning a gift on marriage, when one cannot lawfully marry, violates public policy and constitutes unclean hands” and therefore no enforceable conditional gift was actually made. See Callahan v. Parker, 12 Misc. 3d 1193(A) (table), 2006 WL 2333116 (N.Y. Supp. 2006); Cummins v. Goolsby, 255 So. 3d 1257 (Miss. 2018).
Of course, there can be an exception to this exception as well – where the donor can prove that he did not know that the other party was still married to someone else, he can still recover the ring. Lipschutz v. Kiderman, 905 NYS 2d 247 (NY App. Div. 2010).
VIII. RELATED JEWELRY ISSUES IN DIVORCE: DOES IT MATTER WHO BOUGHT IT, OR WITH WHAT MONEY?
A related issue in divorce cases concerns jewelry bought during marriage. Where the jewelry in one party’s possession was gifted to that party by the other, the regular Nevada law of gifts would appear to make that jewelry the separate property of the recipient, whether it was purchased with separate property or community property funds. NRS 123.130; Kerley v. Kerley, 112 Nev. 36, 910 P.2d 279 (1996) (“property acquired by gift during marriage is separate property pursuant to NRS 123.130, and therefore is not community property pursuant to NRS 123.220”).
However, where a party buys himself or herself jewelry with community property funds, no such presumption kicks in, and such may definitionally be community property with its value to be distributed upon divorce.
How about the common circumstance where an item of separate property (like an engagement ring, once the parties are married) is “upgraded” with community property funds during the marriage? At least on the surface, it would appear to create an item of “mixed” property consisting of both separate property and community property, but the resolution would apparently require an analysis of whether a gift to the recipient was intended. See Schmanski v. Schmanski, 115 Nev. 247, 984 P.2d 752 (1999) (discussing Nevada law of gifts).
The giving of an engagement ring, in the absence of good evidence to the contrary, will likely be seen as a conditional gift, the condition being the marriage of the parties. If the marriage occurs, the ring should be presumed to be the separate property of the recipient. If the engagement fails, in most circumstances the ring should be returned to the donor. If there are unusual facts, conditions, or agreements, it is far better practice to consult an attorney before the ring is given than when disagreeing about it at some later time.
X. QUOTES OF THE ISSUE
“It is amazing at how small a price may the wedding ring be placed upon a worthless hand; but, by the beauty of our law, what heaps of gold are indispensable to take it off!”
– Douglas Jerrold
“Love has been described as a three-ring circus: First comes the engagement ring, then the wedding ring, and after that the suffering.”
– Bob Phillips
“A wedding ring is sort of a tourniquet worn on one’s finger to stop circulation.”