## Facts

- Charles Edward Brewer, Jr. purchased Berkeley County real property for $88,000 and paid the entire purchase price.
- On August 27, 1982 (one day before the wedding), he directed that the deed be prepared in the joint names of himself and Judith Herbaugh (his fiancée) as joint tenants with right of survivorship; the deed identified both as “unmarried.”
- The parties married on August 28, 1982, separated within a year, and the wife filed for divorce in September 1983.
- In the divorce action, the wife sought recognition of a one-half interest in the residence and partition.
- The circuit court applied W. Va. Code § 48-3-10 (presumption that certain transfers between spouses are gifts), found the wife owned a one-half interest, ordered sale of the residence, and divided proceeds equally.
- The husband appealed, arguing the statute did not apply because the conveyance occurred before marriage and that the evidence did not establish a gift.

## Issues

1. Whether W. Va. Code § 48-3-10’s presumption of interspousal gift applies to a conveyance placing property in joint names when the parties were not yet married.
2. If the statutory presumption does not apply, whether the evidence otherwise established that the husband made a present gift of a one-half interest to the wife.

## Decision

- The Supreme Court of Appeals of West Virginia reversed and remanded.
- The statutory presumption of gift between spouses did not apply because the deed was executed before the parties married.
- Without the statutory presumption, the wife bore the burden to prove a gift under ordinary principles and did not establish a one-half ownership interest on this record.
- Because the finding of equal ownership was erroneous, the order directing sale and equal division of proceeds could not stand.

## Legal Principles

- A statutory presumption that certain property transfers between spouses are gifts applies only to conveyances made during an existing marriage.
- A premarital conveyance cannot be brought within the interspousal gift presumption merely because the parties marry shortly thereafter.
- When no statutory presumption applies, the party asserting a gift bears the burden of proving donative intent and the validity of the alleged gift.

## Conclusion

The court held that the interspousal gift presumption in W. Va. Code § 48-3-10 does not reach premarital conveyances, and absent that presumption, a spouse claiming an ownership share must prove a gift; the trial court’s equal-ownership and sale-and-division orders were therefore reversed and the case remanded.


Brewer v. Brewer, 338 S.E.2d 229 (W. Va. 1985)