VI. Marital Estates

Question 1

Common Law Marital Property States

Answer 1

Spouses held separate property only

Question 2

Coverture under Common Law Marital Property

Answer 2

Wife moved under protection of husband. Husband controlled all of wife’s personal property owned by wife at the time of marriage and acquired thereafter, including earnings. For real property, husband had right of possession of all of wife’s lands during marriage; right to possession was alienable and reachable by husband’s creditors.

Question 3

Married Women’s Property Acts (CL MP)

Answer 3

Removed coverture, wife’s property was separate property immune from husband’s debts

Question 4

CL Distribution at Death- Personal Property

Answer 4

At husband’s death, a widow took 1/3 of husband’s personal property if there were surviving issue. If no surviving issue, she received 1/2. At wife’s death, widower took all of wife’s personal property.

Question 5

CL Distribution at Death- Real Property- Dower

Answer 5

Wife gets a life estate in 1/3 of each freehold of which the husband was seised during marriage and which was inheritable by issue. This attaches at moment of marriage. Creditors/purchasers take subject to wife’s dower right

Question 6

CL Distribution at Death- Real Property- Curtesy

Answer 6

Husband gets life estate in all of wife’s land, but only if husband and wife had issue born alive. Attached to all freehold land that wife was seised during marriage and that was inheritable by issue.

Question 7

Modern Elective Force Share

Answer 7

Spouses can take share (usually 1/2 and 1/3) of all real and personal property that decedent-spouse owned at death. (does not include anything during lifetime)

Question 8

Community Property

Answer 8

Earnings during marriage and the rents, profits, and fruits of earnings

Question 9

Separate Property

Answer 9

Property that is not CP, includes:

• Property acquired before marriage; and
• acquired during marriage by gift, devise or descent

Question 10

Community Property Basics

Answer 10

1. Spouses own CP in equal shares; SP belongs 100% to the spouse who acquired it
2. Property acquired during marriage is presumed CP, although presumption is rebuttable
3. Spouses can transmute (change) the character of property by agreement from CP to SP, or SP to CP.

Question 11

Disposition of CP at Death

Answer 11

1. Testate: each spouse has power to dispose of his or her own share of CP and all of his or her own SP by will.
2. Intestate: Decedent-spouse’s share of CP and all of decedent-spouse’s SP passes to his or her heirs

Question 12

Management over Marital Property

Answer 12

Spouses have equal management power over CP. SP is managed by the spouse who owns it.
Spouses have fiduciary obligations and must act in good faith (not necessarily good judgement)

Question 13

Mingled Separate and Community Property: Inception of Right rule

Answer 13

Property is characterized as separate or community at the time that it is acquired. If the property is characterized as separate property, the community is entitled to reimbursement of the community funds used to acquire the property

Question 14

Migrating Couples

Answer 14

Character of property is determined by the spouse’s domicile when acquired. Once characterized, the character of property does not change unless both parties consent

Question 15

Migrating Couples- Personal Property

Answer 15

Law of the decedent’s domicile at death governs the disposition of personal property at death

Question 16

Migrating Couples- Real Property

Answer 16

Law where the land is located governs the disposition of real property

Question 17

Common Law Marriage

Answer 17

Where common law marriage exists, states generally require that the couple agree to be married, hold themselves out as married, and act as a married couple.

Question 18

Mingled Separate and Community Property: Time of Vesting:

Answer 18

Property is characterized as separate or community at the time that title vests.

Question 19

Mingled Separate and Community Property:

Pro Rata Sharing:

Answer 19

Property is characterized partly as separate property and partly as community property in proportion to the amount contributed.