Treatment of Jointly Held Marital Property

Question 1

JT: Treatment of property during marriage

Answer 1

Both spouses have a concurrent equal and undivided interest in the entire property.

One or both members may sever joint tenancy by transferring his or her interest, creating a tenancy in common between shareholders

Question 2

JT: Distribution of property at divorce

Answer 2

Court severs joint tenancy at divorce and property is divided evenly between spouses (or domestic partners). Property can be sold and proceeds divided, or one spouse can buy out the interest of the other spouse.

In rare cases, the couple may choose to continue to own the property as joint tenants after divorce.

Question 3

JT: Distribution of property at death

Answer 3

Surviving spouse takes share held by decedent spouse by right of survivorship.

Survivorship is triggered automatically by the death of the decedent spouse.

Decedent spouse cannot will his or her share to a third person

Question 4

TIC: Treatment of property during marriage

Answer 4

Each spouse owns a share of the property. Generally, spouses own equal shares.

Either spouse can freely alienate (transfer) his or her share to another person during the marriage.

Question 5

TIC: Distribution of property at divorce

Answer 5

Each spouse receives his or her share of the tenancy in common. For married couples, this generally means each spouse receives one-half of the property.

Property can be sold and proceeds divided, or one spouse can buy out the interest of the other spouse.

Question 6

TIC: Distribution of property at death

Answer 6

Decedent spouse can will his or her share to a third person.

Alternatively, decedent spouse can, of course, will his or her share to surviving spouse.

If decedent spouse dies without a will (intestate), his or her share will be considered SP and will go to the decedent’s heirs. In most intestate succession schemes, this actually means that the surviving spouse would receive some portion of the decedent spouse’s share (1/2 to 1/3).

Question 7

CP: Treatment of property during marriage

Answer 7

Either spouse can alienate or transfer his or her share to another person, subject to some restrictions, including permission of the other spouse for real property transfers.

Question 8

CP: Distribution of property at divorce

Answer 8

Each spouse receives his or her own one-half of the community property.

Property can be sold and proceeds divided, or one spouse can buy out the interest of the other spouse.

Question 9

CP: Distribution of property at death

Answer 9

Decedent spouse can will his or her share of community property to a third person.

Alternatively, decedent spouse can, of course, will his or her share to surviving spouse.

If decedent spouse dies without a will (intestate), his or her share will be considered SP and will go to the decedent’s heirs. In the California intestate succession scheme, this means that the surviving spouse would receive all of the community property (she already owned her share, and now she would receive the decedent spouse’s share of CP as well).

Question 10

CPwRoS: Treatment of property during marriage

Answer 10

During marriage, either spouse can alienate (transfer) his or her share to another person, just as with ordinary community property ownership.

Question 11

CPwRoS: Distribution of property at divorce

Answer 11

Each spouse receives his or her one-half of the property.

Property can be sold and proceeds divided, or one spouse can buy out the interest of the other spouse.

Question 12

CPwRoS: Distribution of property at death

Answer 12

Surviving spouse receives the share of decedent spouse by right of survivorship, just as in joint tenancy