Family Law Corner: Cobain to Husband: “Nevermind” the Guitar

Frances Bean Cobain, daughter of Kurt Cobain and Courtney Love, may be wishing she had a little less “teen spirit” when she decided to marry The Eeries front man, Isaiah Silva. After less than two years of marriage, the two are divorcing and she is now paying him spousal support and using police escorts to move her things out of their home. Even worse for Cobain, Silva is now claiming that she gave him Kurt Cobain’s Martin D-18E guitar as a wedding present. This is not just any guitar: Cobain played this guitar during his last public appearance, during his acclaimed “MTV Unplugged” performance. The guitar is only one of 300 of its kind and was modified to accommodate Cobain’s left-handedness. Previously, the guitar was insured for $1 million and is estimated to be worth millions more today. Cobain inherited this guitar as part of the Cobain estate.

So can Silva tell Cobain to “nevermind” her inherited property because it was a gift to him? It depends. Under Family Code §770, separate property is “all property acquired by the person after marriage by gift, bequest, devise, or descent.” Since Cobain is claiming she inherited the guitar, and therefore it is her separate property, Silva can only claim ownership if he can prove she gifted it to him.

To prove a gift, he must show that the following elements are present: (1) competency of the donor (Cobain); (2) donor’s voluntary intent to make a gift; (3) delivery; (4) acceptance; (5) giving up control of the gift; and (6) no consideration for the gift. See Burkle v. Burkle (2006) 141 Cal.App.4th 1029, 1036.

But, Family Code §852 adds further requirements for gifts within marriage. It states that when a gift or transmutation is claimed, it is not valid “unless made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected.” This means that Silva must produce a writing signed by Cobain giving up her interest in the guitar.

Silva has one other option if he doesn’t have such a writing. Under §852(c), if the gift is of “tangible articles of a personal nature that is used solely or principally by the spouse to whom the gift is made and that is not substantial in value taking into account the circumstances of the marriage,” then a written transmutation of ownership isn’t required. Thus, he has the burden of showing that the multi-million-dollar guitar is the kind of gift these two young celebrities would give to each other. There’s a good chance that the court will be “all apologies” when it tells Silva no guitar unless he has the writing proving that Cobain gave it to him.