§ 11.01 Gender and Marital Property [134]

 

Traditionally, the common law allowed men to exercise almost total control over marital property during the marriage, upon divorce, and at death.  Most states initially followed this approach, but reforms over time have produced greater gender equality.  The principal alternative, adopted by eight states, is the community property system.

 

§ 11.02 Traditional Common Law System [134-136]

 

Under the traditional approach, the husband obtained a life estate in all freehold lands owned by his wife during the marriage.  When divorce occurred, property was divided between the spouses according to who had title.  At death, a widow received dower—a life estate in one-third of her husband’s qualifying real property; a surviving widower received curtesy—a life estate in real property owned by his wife in fee simple or fee tail.

 

§ 11.03 Modern Common Law System [136-143]

 

                        [A]       Rights During Marriage

 

The nineteenth century Married Women’s Property Acts adopted by most states eroded the prior system.  Under these reforms, women are allowed to retain control of their property after marriage, and to acquire additional property thereafter.  Thus, rights in property during the marriage are based on which spouse acquires it.

 

                        [B]       Rights Upon Divorce

 

Today all common law states require equitable distribution of marital property at divorce.  Which spouse holds title to the property during the marriage is not determinative.  Rather, the court will distribute the property based on a number of factors, such as the income of each spouse, the duration of the marriage, the occupational skills of each spouse, and so forth.

 

                        [C]       Rights Upon Death

 

The elective share has replaced dower and curtesy in almost all common law jurisdictions.  Under this approach, the surviving spouse may elect to either abide by the terms of the decedent spouse’s will or take a share (normally one-half or one-third) of all property the decedent owned at death.

 

§ 11.04 Community Property System [143-146]

 

The community property system views marriage as an economic partnership between husband and wife in which the contributions of each are valued equally.  In general, the earnings of either spouse during marriage, and all proceeds from those earnings, are deemed community property.  During the marriage, the spouses have equal rights to use and control the community property.  Upon divorce, community property is divided between the spouses, often using equitable criteria.  Finally, at death the decedent spouse may transfer by will one half of the community property; the other half belongs to the surviving spouse.

 

§ 11.05 Conflict Between the Systems: The Problem of Migrating Couples [146-147]

 

If a couple moves from a common law jurisdiction to a community property jurisdiction, problems may arise.  For instance, if the husband is the only wage earner in the common law state, all property acquired with his earnings belongs to him; if the couple now moves to a community property state, this may be viewed as the husband’s separate property, to do with as he wishes.

 

§ 11.06 Attempts to Avoid the Systems:  Premarital Agreements [147]

 

The modern trend is to recognize the validity of premarital agreements.  Most states have adopted the Uniform Premarital Agreement Act, which establishes criteria for determining when such agreements will be enforced.

 

§ 11.07 The Future of Marital Property Law?: Uniform Marital Property Act [147-148]

 

The Uniform Marital Property Act may eventually bridge the gap between the common law and community property systems.  Its major contribution is to provide that each spouse owns a half-interest in all marital property during the marriage, much like the community property system.

 

§ 11.08 Property Rights of Unmarried Couples [148-150]

 

In most states, property rights may exist between unmarried cohabitants, though the legal basis for this approach varies.  Many states will enforce express contracts between cohabitants concerning property rights; some states provide relief based on implied contract, unjust enrichment, or other theories.