This protects couples that move from a community property state into one where community property is not recognized, from drastic changes in the character and disposition of their property upon the death of a spouse. Laws of descent and distribution, divorce and property distribution, and use of joint tenancies, tenancies-in-common, and tenancies by the entirety have largely made it unnecessary to be concerned with the surviving spouse being left with no part of the marital property.Įleven states have adopted the Uniform Disposition of Community Property Rights at Death Act (UDCPRDA). However, dower and curtesy has generally become obsolete in the modern world. Curtesy is essentially the same system in reverse, giving the husband a percentage share of his wife’s estate. Dower generally preserved a percentage share of the value of the estate. A very old common law scheme of division of marital property is known as “dower and curtesy.” Dower was a way that a woman, who traditionally was not given the opportunity to own property while married, was given a share of her husband’s estate upon his death. Upon an individual’s death, property will be distributed subject to the individual’s legal will or trust, the rules of marital property, and/or intestate succession. If the event giving rise to the need for the characterization is divorce, a set of rules will apply to each portion of the marital property, depending on how it was acquired and what kind of property it is: bank account, primary home, automobile, etc.
In most states, the character of the property in question is determined by the nature of the property itself, the nature of the event giving rise to the need for the particular characterization of property ownership, and the manner, agreement, and instrument by which it was acquired. They may choose joint tenancy, tenancy by the entirety, or tenancy-in-common. For example, there are a number of legal options from which a couple may choose when they decide to acquire property together. If a state is not a community property state, various rules and schemes apply to define the nature of marital property. Consequently, community property laws are found generally in those states that were originally possessions of or which in some way owe some of their legal heritage to colonial Spain. This property ownership scheme has its roots in Spanish Law. In these states, all property or income acquired by either spouse during marriage is considered equally owned by both spouses for purposes of the division of the property upon death or divorce or for purposes of business transacted by either spouse. Nine states recognize community property. There are two general categories that define marital property: community property and not community property. Generally, gifts or inheritances to either spouse along with any money or property earned prior to the marriage are the separate property of that spouse unless it is somehow “converted” into marital property. It is all property owned by the marital estate. Marital property is generally considered to be all property acquired by a couple during their marriage or earned by either spouse during their marriage.
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