Martial Interests

Question 1

Common law - rights during marriage

Answer 1

• A & B own property as one fictitious person
  § Coverture: married women had no legal existence
  I. Married women could not enter into contracts or incur debts
  II. Married women could own, but not possess real property
  IV. Wife has to receive the benefit of the husbands support and protection
  § Married Women’s Property acts
  I. Removed disabilities of coverture and gave women control over their property
  II. Courts struggled with the issue of whether a husband’s creditors could reach the women’s property
  § Sawada v. Endo = the interests of a husband or wife in a tenancy by the entirety is not subject to the claims of his or her individual creditors during the joint lives of the spouses

Question 2

Common law - Rights Upon Divorce

Answer 2

No fault divorce = property is divided by the court on equitable principles
* Some states authorize court to divide all property owned by spouses while others only divide martial property (acquired during marriage) or lastly only property acquired from earnings of either spouse during marriage

Question 3

Common law - Rights at Death

Answer 3

Modern rule is elective share
I. The surviving spouse can renounce the will, if any, and elect to take a statutory share, which is usually one-half or one-third or some other fractional share of property that decedent owned at death
II. Elective share usually does not apply to property held by the decedent in joint tenancy or to life insurance proceeds

Question 4

Community Property - general rule

Answer 4

Fundamental idea is that earnings, and things purchased by these earnings, of each spouse during marriage should be owned equally in undivided shares by both spouses

Question 5

Community Property - rights during marriage

Answer 5

Earnings and whatever is bought with earnings during the marriage is community property
§ Separate property = before marriage or something during marriage by gift, devise, or descent
§ Conveyance of share = neither spouse acting alone can convey undivided share of CP except to other spouse

Question 6

Community Property - rights during marriage: mixing community property w/ separate property

Answer 6

When community property is mixed with separate property, the community property states have enacted three different rules to deal with this
I. Inception of right rule: the character of the property is determined at the time the wife signed the contract of purchase; the house is hers alone
II. Time of vesting rule: the character of the property is determined at the time the house is paid off; hence, the entire house is community property (50/50)
III. Pro rata sharing rule: community payments acknowledged but in pro rata share of title. So two-thirds of the house is community property since community payments only paid for this much

Question 7

Community property - rights upon divorce

Answer 7

I. Some states require an equal division of community property; and
II. Other states authorize a divorce court to make an equitable division of community property

Question 8

Community property - rights upon death

Answer 8

I. Each spouse has the power to dispose by will of one-half of one-half community property at death
I. No survivorship feature
II. None of the community property states recognize dower or curtesy
III. None recognize the tenancy by the entirety
I. Why? Rooted in the idea of married partners taking land as a fictitious one person. While community property is rooted in the idea of a partnership between two people