Marital Interests Flashcards
What is the first question you should ask for marital interests?
What system are they in? Common law or community property state
What are the 2 systems of marital interests
Common law system
Community property system
Common law system: property is divided, each spouse:
Keeps his/her non-marital property
Is awarded a portion of marital property
What is marital property
Depends on the state:
All property owned by either or both spouses
All property acquired after marriage by either spouse
All property acquired after marriage (IL), except gift, device or descent
Maintenance and Marital Property
way to help spouse who could lose their standard of living due to their lesser wealth or earning capacity
Elective Share and Death-time rights
Surviving spouse is entitled to elect either the statutory share of deceased spouse’s estate OR to take under the deceased
Can you overcompensate surviving spouse?
Yes - if spouse was married to husband for only a few months, she can use elective share to get at least 1/3 of his assets
Can you undercompensate a surviving spouse
Yes - A depletes estate before death so at A’s death, surviving spouse takes 1/2 or 1/3 of nothing
Community Property:
3 categories of property
Wife’s property
Husband’s property
Community property
Management of community property
Real estate, both must agree
Titled property, title holder
Business property, spouse who is active in business
Earnings in community property
Earnings from each spouse during marriage/all property acquired from such earnings owned equally in undivided shares by both spouses
3 classification rules for categories of property
Tracing
Income
Comingling assets
Will other states recognize a common law marriage?
IF a CLM is made in a state that recognizes it, other states will recgonize it too
