Consequences of Classification as CP or SP

Question 1

Divorce

Answer 1

Generally, all SP is free from the claims of other spouse and each will get a 1/2 interest in the CP `

Question 2

Death of spouse- Interstate Succession

Answer 2

If W dies before H. H inherits a life estate in an undivided 1/3 interest in W’s SP

The reminder of the 1/3 interest and the ownership of the 2/3 passes to the W’s children

For CP- if all W’s children are also H’s children then H will take entire CP

If any of W’s children are from a different marriage, then H would retain 1/2 CP interest and W’s 1/2 CP interest would pass to each of her children

Question 3

Testamentary Diposition

Answer 3

Each spouse has unrestricted power of disposition over his SP

The surviving spouse has no claim against the deceased spouse’s SP

On the death of one spouse, the surviving spouse takes his 1/2 share of CP and the other 1/2 share passes by the dead spouse’s will

Question 4

Lifetime Gifts

Answer 4

If the gift was CP, there are two bases on which the surviving spouse may be able to set the gift aside: 1) it may have been in fraud of spouse’s rights or 2) the transfer may have been illusory