Marital Gifts: Why Long Island surgeon Dr. Batista's kidney belongs to them both

There is a case in New York, Nassau County, about a surgeon Dr. Richard Batista and his wife Dawnell Batista. Dr. Batista wants over $1 million dollars from his wife as a divorce settlement. That is because a few years back he gave her one of his kidneys and she later betrayed him and had an affair with another man. She denies the affair, as does the man, and we have a post which you can find here about the matter.
But we just wanted to add this one to the mix. Because, at the end of the day, we feel that the doctor’s kidney was an asset. And he bestowed this asset on his wife without getting paid for it in return. That made it a gift. It was an unconditional gift. Or maybe it was a conditional gift – and that is that she would never leave him or never cheat on him. Whatever the case may be, the law in New York as it relates to gifts given during the marriage is this:
If the gifts are given by one spouse to another during the marriage, the gift becomes marital property at the time of divorce. Now, of course, that pertains usually to gifts that are purchased or obtained with marital funds. In this case, he did not purchase his kidney. He was “gifted” his kidney, or he “inherited” his kidney. If that is the interpretation, then the kidney is separate property and upon divorce, he would be entitled to keep it or get the monetary value for it. 
The only problem is that the law also makes clear that when a separate property is “commingled” with a marital property, it loses it’s separate status. So, when he gave his wife the kidney, he arguably commingled his separate property with marital property.
So guess what? If that is the interpretation, the surgeon will not be entitled to the full value of the kidney, only the fair, equitable portion of its value. So, if he is saying his kidney is worth about $1.5 million, then at most he is looking at $750,000 for it – maybe a bit more since he did have to endure the pain to take it out and give it to her. But he won’t get the full value. Because the law  clearly states that when separate property is commingled with marital property, it becomes marital property and all marital property is subject to the laws of Equitable Distribution in New York State.
So Trisha Walsh Smith is wrong. She says you can’t get gifts back in her comment in the New York Post Page Six.  But I don’t think she is correct on that. You can get a portion of marital gifts back. I think that is what I read the law to say on this issue.
See our previous post on the Batista case here:
See our post on Trisha Walsh Smith who made our Divorce it List of 2008 here: