Marriage

Question 1

Tenancy by the Entirety

Answer 1

May only exist between married co-owners. Just like in joint tenancy, spouses have a right of survivorship.

However, there is no possibility of unilateral severance. One spouse acting alone(in secret) cannot affect the other spouse’s right of survivorship. Property may only be partitioned with the ending of the marriage or with the agreement of both spouses.

Question 2

Separate Property

Answer 2

Typically property owned by either spouse before the marriage, or received as a gift or inheritance after the marriage.
-> May lose its character and be transmuted with marital property by being co-mingled.

Question 3

Co-mingling (Death + Divorce)

Answer 3

Separate property that is co-mingled with marital property retains its separate character if it can be traced and identified.

Death: when one spouse dies, 1/2 of the community property and all of the decedent’s separate property passes through the decedent’s estate. 1/2 is retained by the surviving spouse.

Divorce: jurisdictions vary, some go 50/50 and some divide assets equitably.

Question 4

Prenuptial Agreement

Answer 4

Rule: States will enforce a prenup agreement if it is in writing, signed and notarized.

Exceptions: Some states require full disclosure of the assets involved and a knowing, willing waiver of rights.
-> Other states require a certain minimum standard of fairness.
-> Some states use an unconscionability standard.

Question 5

Elective Share

Answer 5

On the death of a spouse, the surviving spouse is entitled to take a certain share of the deceased spouse’s estate, regardless of the provisions of the will.

Question 6

Dower and Curtesy

Answer 6

Community property jurisdictions do not use spousal protection devices such as elective share or dower and curtesy because the spouse automatically owns half of the community property.
->A spouse’s dower interest must be released by a spouse, even if the property is titled solely in the name of the other spouse.
->Modern: dower typically applies to both spouses and gives the spouse 1/3 fee simple interest in any real property of which the deceased spouse’s was seized during marriage.

Question 7

Elective Share statutes are…

Answer 7

optional for a surviving spouse because they can claim the elective share or take what is given through the will.

Question 8

If 1 spouse is making all the money…
(separate property)

Answer 8

then all the property purchased with the money could be considered separate property because there is no co-mingling in separate property states.