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)
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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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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)
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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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