• Regulation Of The Relationship Of Spouses With regard to property

Regulation Of The Relationship Of Spouses With regard to property

Marital Property

• Regulationoftherelationshipofspouseswith regard to property

Two systems:

– Separate Property (40 states)

– Community Property (10 states: California, Arizona, New Mexico, Nevada, Texas, Louisiana, Wisconsin, Idaho, Washington, Alaska)

2

Marital Property

• Regulationoftherelationshipofspouseswith regard to property

Two systems:

– Separate Property states: property acquired before and during marriage is owned individually/separately, but duty of support applies

– Community Property states: couple is viewed as a partnership in which most property acquired during marriage is owned jointly

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Blackstone’s Commentaries (1765- 69)

“By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing . . . and her condition during her marriage is called her coverture.”

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Separate Property

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Separate Property

• Death:propertymaypassbywill,butsurviving spouse entitled to at least a minimum share of the decedent’s estate (set by statute at 1/3 – 1/2 of the estate)

6

Separate Property

• Divorce:equitable(discretionary)divisionof“all property” (some states) or only “marital property” (other states). “Equitable” may mean half, or less than that.

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Separate Property

Equitable factors often include:

– Need (including child support, necessities)

– “Rehabilitation” (allow spouse to obtain marketable skills) – Contributions during marriage (including domestic work) – Age, health, occupation, income, vocational skills

– Length of marriage

– Fault / marital misconduct (some states)

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Separate Property

• Whatis“maritalproperty”?

– Always: Earnings during marriage

– Some states: gifts, inheritances during marriage, property acquired before the marriage

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Separate Property (Summary)

DEATH

Property may pass by will, but surviving spouse entitled to at least a minimum share of the decedent’s estate (set by statute at 1/3 – 1/2 of the estate)

DIVORCE

Equitable (discretionary) division of “all property” (some states) or only “marital property” (other states)

DURING

Property owned separately (unless shared) but duty of support applies

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Separate Property

• Isadegree“maritalproperty”?

– Marital property (O’Brien, NY minority view)

– Not marital property but get reimbursement for contributions or lost opportunity cost (CA; WI)

– Not marital property (Mahoney, NJ)

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Marital Property

• Regulationoftherelationshipofspouseswith regard to property

Two systems:

– Separate Property states: property acquired before and during marriage is owned individually/separately, but duty of support applies

– Community Property states: couple is viewed as a partnership in which most property acquired during marriage is owned jointly

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Community Property States

• Propertyownedbythespouses falls in two distinct categories: “Community Property” and “Separate Property”

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Community Property States

• “CommunityProperty”includes earnings, rents, profits during marriage + anything purchased with those; presumption in favor of this

• “SeparateProperty”includes property acquired before marriage; property acquired during marriage by gift or inheritance

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Community Property States

• Death:noelectiveshare;property can be left by will (but you can only leave what you own, e.g., SP plus 1⁄2 CP) or will pass by rules of intestacy

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