In Washington, an important part of dividing up the assets and debts in a divorce or legal separation is first determining what’s community property and what’s not. In New York, a judge may be called on to determine what kind of property a kidney is!
As you may have already read, there’s a New York couple in the process of divorcing and the unique property issue they have is over the wife’s kidney. It was donated to her by her husband, a vascular surgeon. I can’t speculate on how the case will turn out, as I’m not familiar with the law in New York, but it seems pretty unlikely to me that the judge will give Dr. Batista the relief he’s requested: Either a return of the kidney or $1.5 million in compensation.
In Washington, the legal analysis starts with whether disputed property is separate or community. (New York is not a community property state, although I suspect they have an analogous concept, such as “martial property”.) According to the law in Washington, property is characterized by when it is acquired. To start with, then, the kidney would be considered the husband’s separate property. But then he gave it to the wife…and I bet there was a heck of a lot of paperwork involved to record the “gift”. My vote: The kidney belongs to the wife, and not in the divorce negotiations.