All You Need Is A Dollar And A Dream….. And

To scratch or not to scratch, that is the question.

At least it should be when you are in the midst of, or contemplating divorce. The question posed in legal terms is “Are lottery winnings a marital asset subject to equitable distribution?” The Answer is, “It depends.”

The proceeds of a winning lottery ticket acquired by a spouse during the marriage constitute marital property. See Damon v. Damon, 34 AD3d 416(2d Dept. 2006) Thus, If you or your spouse purchase a winning lottery ticket during your marriage it is treated as any other asset derived during your union.

On the other hand, if either spouse purchases a winning lottery ticket subsequent to the commencement of an action for divorce, by either filing a Summons with Notice or service of the Summons on the opposing party, then your lucky ticket and the prize monies received there from will truly be yours to keep. Such was the circumstance at issue and ruled upon by Queens Supreme Court Justice Pamela Jackman-Brown in the matter of Questel v. Questel, 2013 NY Slip Op 23076 (February 4, 2013). There the Wife had purchased her winning ticket after the commencement of the action but did not divulge her windfall until almost one (1) year later. Although the prize money was hers to keep, her new found economic status did impact her “need” for temporary (pendent lite) support. Accordingly, the Court’s prior support order granting the Wife temporary maintenance was modified as of the date of the Husband’s application and her award of counsel fees vacated. See Questel.

In another variation on the theme of “luck,” if a spouse becomes the recipient of someone else’s good fortune, in other words a friend or a relative gifts to him/her a portion of their pot of gold, it too should be theirs to keep.

Domestic Relations Law §236, Part B (1) (d) (1) defines “separate property” as “property acquired before marriage or acquired by bequest, devise, or descent, or gift from a party other than the spouse (emphasis added).” Since property given as a gift to a spouse by a third party is not subject to equitable distribution (See Embury v. Embury, 49A.D.3d 802 (2d Dept. 2008), it stands to reason that lottery winnings shared in this manner would not be as well.

In the last analysis, try your luck, or share in somebody else’s, keeping this information “close to the vest.”