30. Marital Property
Marital property is generally considered to be all property acquired by a couple during their marriage or earned by either spouse during their marriage. It is all property owned by the marital estate. 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.
There are two general categories that define marital property: community property and not community property. Nine states recognize community property. 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. This property ownership scheme has its roots in Spanish Law. 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.
If a state is not a community property state, various rules and schemes apply to define the nature of marital property. For example, there are a number of legal options from which a couple may choose when they decide to acquire property together. They may choose joint tenancy, tenancy by the entirety, or tenancy-in-common. 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. 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.
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. 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. Dower generally preserved a percentage share of the value of the estate. Curtesy is essentially the same system in reverse, giving the husband a percentage share of his wife’s estate. However, dower and curtesy has generally become obsolete in the modern world. 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.
Twelve states have adopted the Uniform Disposition of Community Property Rights at Death Act (UDCPRDA). 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. This is an important consideration in today’s highly mobile society.
|Table 30: Marital Property|
|State||Community Property||Dower And Curtesy|
|ALABAMA||No||Dower and curtesy abolished (§43-8-57)|
|ALASKA||Yes. Community Property Act §34.77.030||Curtesy: Uniform Probate Code adopted (§§13.06.005, et seq. ); dower has been abolished|
|ARIZONA||Yes (§25-211)||Dower and curtesy abolished (§1-201)|
|ARKANSAS||No, but Uniform Disposition of Community Property Rights at Death Act (UDCPRDA) adopted. (§§28-12-101,et seq. )||Dower allowed; common law curtesy abolished; statutory allowance called curtesy provided (§28-11-301 et seq. )|
|CALIFORNIA||Yes (Fam. C. §751 §770)||No estate by dower or curtesy (Prob. C. §6412)|
|COLORADO||No. But Uniform Disposition of Community Property Rights at Death Act (UDCPRDA) adopted. (§§15-20-101, et seq. )||Curtesy and dower abolished (§15-11-112)|
|CONNECTICUT||No, but Uniform Disposition of Community Property Rights at Death Act (UDCPRDA) adopted. (§§45a-458, et seq.)||No dower or curtesy when marriage occurred after April 20, 1877 (§46b-36)|
|DELAWARE||No||Dower and curtesy abolished (12§511)|
|DISTRICT OF COLUMBIA||No||Dower and curtesy abolished (§19-102)|
|FLORIDA||No, but Uniform Disposition of Community Property Rights at Death Act (UDCPRDA) adopted. (§§732.216,et seq. )||Dower and curtesy abolished (§732.111); statutory right to elective share of surviving spouse recognized (§§732.201, et seq.)|
|GEORGIA||No||Dower and curtesy abolished (§53-1-3)|
|HAWAII||No, but Uniform Disposition of Community Property Rights at Death Act (UDCPRDA) adopted. (§§510-21, et seq. )||Statutory right to elective share of surviving spouse recognized. (Uniform Probate Code §§560:2-201, et seq. )|
|IDAHO||Yes (§32-906)||Curtesy and dower abolished (§32-914)|
|ILLINOIS||No||Dower and curtesy abolished as of 1/1/72 (755 ILCS 5/ 2-9)|
|INDIANA||No||Dower and curtesy abolished (§29-1-2-11)|
|IOWA||No||Curtesy abolished (§633.238); dower abolished (§633.211)|
|KANSAS||No||Dower and curtesy abolished (§59-505)|
|KENTUCKY||No, but Uniform Disposition of Community Property Rights at Death Act (UDCPRDA) adopted. (§§391.210,et seq. )||Yes, with exceptions (§§392.010, et seq. )|
|LOUISIANA||Yes, with considerable exceptions (CC Art. 2334, et seq.)||Unknown to the law of Louisiana|
|MAINE||No||Dower and curtesy abolished (T.18-A, §2-113)|
|MARYLAND||No||Dower and curtesy abolished (Est. … Tr. Art.§3-202)|
|MASSACHUSETTS||No||Curtesy abolished (Ch. 189, §1), but certain dower and curtesy rights (merged and together called “dower”) remain|
|State||Community Property||Dower And Curtesy|
|MICHIGAN||No, but Uniform Disposition of Community Property Rights at Death Act (UDCPRDA) adopted. (§§557.261, et seq. )||Dower (§§558.1, et seq. ); no curtesy or dower allowed in community property (§557.214)|
|MINNESOTA||No||Provides for actions based on dower and curtesy or interest in lieu of same (§519.101)|
|MISSISSIPPI||No||Dower and curtesy abolished (§93-3-5)|
|MISSOURI||No||Dower and curtesy abolished (§474.110)|
|MONTANA||No, but Uniform Disposition of Community Property Rights at Death Act (UDCPRDA) adopted. (§§72-9-101,et seq. )||Dower and curtesy abolished (§72-2-122)|
|NEBRASKA||No. unless can prove otherwise (§42-603)||Dower and curtesy abolished (§30-104)|
|NEVADA||Yes (§§123.130, 220, 230)||Dower and curtesy abolished (§123.020)|
|NEW HAMPSHIRE||No||Dower and curtesy abolished (Ch. 560:3)|
|NEW JERSEY||No||Dower and curtesy abolished as to all property obtained after May 28, 1980 (3B:28-2); some rights exist re property obtained before that date (3B:28-1, et seq. )|
|NEW MEXICO||Yes (§§40-3-6, et seq.)||Dower and curtesy abolished (§45-2-112)|
|NEW YORK||No, but Uniform Disposition of Community Property Rights at Death Act (UDCPRDA) adopted. (Estates, Powers and Trusts Laws §§6-6.1, et seq.)||Certain dower rights for widow of marriage before September 1, 1930 (Real Property Law §§190, 190b); curtesy abolished (Real Property Law §189—certain rights remain for widower of woman who died on or before August 31, 1930)|
|NORTH CAROLINA||No, however Uniform Disposition of Community Property Rights at Death Act adopted (§§31C-1, et seq.)||Dower and curtesy abolished (§29-4)|
|NORTH DAKOTA||No||Dower and curtesy abolished (§14-07-09)|
|OHIO||No||Dower (§§2103.02; et seq. ; 3105.10); curtesy abolished (§2103.09), husband has dower interest|
|OKLAHOMA||Repealed (§43-215)||Dower and curtesy abolished (§84-214)|
|OREGON||Repealed effective April 11, 1949 (§108.520), but Uniform Disposition of Community Property Rights at Death Act (UDCPRDA) adopted. (§§112.705,et seq. )||Dower and curtesy abolished for surviving spouse of person who dies after July 1, 1970 (§§112.685-695)|
|PENNSYLVANIA||No. State Supreme Court held community property law (§§48-201, et seq. ) invalid under state constitution (357 Pa. 581, 55 A.2d 521)||Share of spouse’s estate which is allotted to surviving spouse by rules of intestate succession or by election against will is in lieu and full satisfaction of dower or curtesy at common law (§§20-2105)|
|RHODE ISLAND||No||Dower and curtesy abolished (§33-25-1)|
|SOUTH CAROLINA||No||Dower barred for divorced wife (§20-3-190)|
|SOUTH DAKOTA||No||Dower and curtesy abolished (§25-2-9)|
|TENNESSEE||No||Dower and curtesy, unless vested, abolished as of April 1, 1977 (§31-2-102)|
|State||Community Property||Dower And Curtesy|
|TEXAS||Yes (Fam. C. §§3.001–§§3.104; Prob. C. §§38, 45)||Does not exist|
|UTAH||No||No dower and curtesy rights (§75-2-112)|
|VERMONT||No||Dower and curtesy rights set forth in §§ 14-461 to 474|
|VIRGINIA||No, but Uniform Disposition of Community Property Rights at Death Act (UDCPRDA) adopted. (§§64.1-197, et seq. )||Dower and curtesy abolished unless vested before January 1, 1991 (§64.1-19.2)|
|WASHINGTON||Yes (§26.16.030)||Dower and curtesy abolished (§11.04.060)|
|WEST VIRGINIA||No||Dower and curtesy abolished (§43-1-1)|
|WISCONSIN||Adopted Uniform Marital Property Act with variations on January 1, 1986 (§§766.31)||No dower or curtesy rights exist|
|WYOMING||No, but Uniform Disposition of Community Property Rights at Death Act (UDCPRDA) adopted. (§2-7-720)||Dower and curtesy abolished (§2-4-101)(b)|
"Marital Property." National Survey of State Laws. . Encyclopedia.com. (March 20, 2019). https://www.encyclopedia.com/law/legal-and-political-magazines/marital-property
"Marital Property." National Survey of State Laws. . Retrieved March 20, 2019 from Encyclopedia.com: https://www.encyclopedia.com/law/legal-and-political-magazines/marital-property
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