Marital Property Basics: Property Before, During and After Marriage

During a marriage, these classifications may seem trivial and typically aren't a factor. Still, these details become very important in the unfortunate events of separation, divorce or death.

The rules of property ownership differ based on the following life events:

  • Before marriage
  • During marriage
  • After separation or divorce
  • After one spouse's death

The specifics depend on your state and if you live in a "common law" or "community property" state. The type of property may also be relevant.

The following information will help you understand how couples might divide marital assets and debts based on where they live and any agreements they have reached.

Marital Property and Common Law Property States

Most states are common law property states. These states acknowledge that property that a person owns or inherits prior to marriage remains that person's separate property after they get married. As a general rule, the common law system also provides that anything acquired by one person in a married couple is owned solely by that person during the marriage.

Property, like real estate, belongs to both spouses only if the title or deed is in the names of both spouses. With both names on the title, each owns a one-half interest or 50% interest unless otherwise specified.

This can get more complicated for personal property or accounts, like pensions, retirement accounts, or credit cards. Unlike real property and cars, many personal property items do not have a certificate of title. Retirement plans and pensions are often separately addressed in state and federal law.

Example: Property Titles in Common Law States

If George buys a car and puts it only in his name, it belongs only to George. He holds the property rights, and the car is not considered marital property in a common law state. He also owns the debt (if any).

If George buys a car and puts it in both his and his spouse's name, then the car belongs to both of them. They also equally share in debt for the car (if any). It is marital property, subject to an equal division unless otherwise indicated.

Effect of Divorce or Legal Separation

If the couple divorces or obtains a legal separation, the court will decide how the marital property will be divided.

You can learn more about each state's laws for:

In divorce, each state has a statute specific to the procedure of that state. The statute may blend concepts from common law and community property law.

A couple can always enter into an agreement before the marriage, explaining how to distribute the marital property upon divorce or separation. This is called a "prenup" or prenuptial agreement. Most states also permit you to create this agreement after marriage in a postnuptial agreement. These documents generally address financial matters only. They may address whether there will be spousal support or alimony, along with property and debts. In contrast, courts will not usually accept terms that address child custody or child support prior to the filing of a divorce or dissolution action.

Property Distribution After Death or Separation

When one spouse passes away, their separate property is distributed according to:

  1. Their will
  2. Their state's intestate law (in the absence of a will)
  3. A prenuptial or postnuptial agreement

The distribution of the marital property depends on how the spouses share ownership of the item at issue. The property goes to the surviving spouse if they own property in:

  1. "Joint tenancy with the right of survivorship"
  2. "Tenancy by the entirety" (which requires the couple to be married)

Joint tenancy or tenancy by the entirety provides survivorship rights that operate independently and outside the probate process. They do not depend on what's written in the deceased spouse's will.

However, different rules apply if the property was owned as "tenancy in common." In that case, the deceased spouse's share of the marital property can go to someone other than the surviving spouse. The will must designate the non-spouse beneficiary clearly.

Not all property has a title or deed, so generally, whoever paid for the property or received it as a gift owns it.

If the parties had executed a valid prenuptial or postnuptial agreement, then the terms of the agreement will usually take priority on these matters.

Marital Property and Community Property States

Only a few states have community property laws. These states acknowledge that money or property acquired before the marriage is considered separate property. These are owned only by the original owner unless gifted or commingled during the marriage.

Community property states follow the rule that all money and property earned, purchased, as well as gifts during the marriage are considered "community property" of the couple. Marital property in community property states is always owned by both spouses equally (50/50). This marital property includes:

  • Earnings of both parties during the marriage
  • All property bought with those earnings
  • All debts acquired during the marriage

This designation of marital property as community property begins on the day of your marriage. It ends when the couple physically separates (in furtherance of divorce) or at death.

Transferring and Gifting Property

A spouse can gift property to the other spouse. For example, a spouse owned separate property before their marriage in a community property state. They can transfer the title of their separate property (in whole or in part) to the other spouse.

They can also transfer items to community property. One example is making a new spouse an account holder on your prior bank account, which turns it into a joint bank account. Most joint bank accounts come with survivorship benefits. This means upon the death of one party, the other party owns the entirety of the account.

Separate Property 101

Separate property definitions can differ from state to state. They typically include:

  • Property purchased by or gifted to just one spouse before the marriage occurs.
  • Property gifted to just one spouse during the marriage.
  • Property inherited by just one spouse.

Community Property 101

The laws of your specific state define community property. These guidelines typically include the following:

  • Money earned by either spouse during the marriage
  • Anything purchased during the marriage with either spouse's earnings
  • Separate property mixed with community property to the point it can't be identified

Mixing separate property with community property is called "commingling." One common example is an inheritance added to a joint bank account. Another example is when the parties pool their separate funds to make the down payment on the marital home.

Spouses may not solely act on any whole piece, or 100%, of community property. They must have the other spouse's permission to do the following:

  • Transfer or sell the item
  • Alter the item
  • Destroy the item

They can, however, manage their own half. In other words, that spouse cannot be alienated from the 50% that belongs to them.

Example of Community Property: Cars

Sam and Amanda have been married for ten years. Amanda is a successful doctor and uses their salary to buy a car. That car becomes community property because it was bought during the marriage. Both Sam and Amanda own the car equally.

Even if Amanda put the car title only in Amanda's name, some states will view it as community property as the purchase occurred during the marriage. However, a valid prenuptial or postnuptial agreement can detail which marital assets are not shared.

Example of Community Property: Personal Property

Kelly and Connor have been married for 5 years. Kelly owns a valuable piece of antique furniture acquired before the marriage. Kelly alone owns the antique, so it is not community property because it was acquired before the marriage.

If Kelly gives Connor a 50% interest in the antique, the antique would be part of the community property.

Property Distribution After Death or Separation

A spouse's half of the community property automatically passes to the surviving spouse after death.

The deceased spouse's separate property can be given to anyone they wish. This must be legally set up with a will. Otherwise, the separate property will be distributed in accordance with the intestate statute when there is no will.

Community Property With the Right of Survivorship

Many community property states, including California, offer an option called "community property with rights to survivorship."

Let's say a couple holds a title or deed to a piece of property together, such as a home. Upon a spouse's death, the title passes automatically to the surviving spouse. This occurs no matter who made the mortgage payments. This avoids court proceedings, just like the deed designation of joint tenancy.

50/50 Community Property Division

If the couple divorces or obtains a legal separation, all of the community property is divided evenly (50/50). The separate property of each spouse is distributed to the spouse who owns it and is not divided according to the 50/50 rule.

Sometimes, economic circumstances warrant awarding certain assets wholly to one spouse. Each spouse still ends up with 50% of the community property in terms of total economic value. This is most common regarding marital homes. Since dividing a house in half is not feasible, the court will often award one spouse the house. The other spouse receives other assets that equal half the home's value.

As with community property states, the couple may enter into an agreement on how the marital property should be divided upon divorce. This occurs through a prenuptial or postnuptial agreement.

Exceptions to the Equal Division Rule

The following exceptions may apply to the equal division rule depending on your state:

  • One spouse misappropriates the community property, whether before or during a pending divorce.
  • One spouse has incurred educational debts (student loans). This may be the same as separately incurred debt, depending on your state law.
  • One spouse incurred tort liability NOT based on activity for the benefit of the marital community.
  • A personal injury award is community property when it occurs during the marriage, but on divorce is awarded to the injured spouse.
  • "Negative community" refers to a situation where the community's liabilities and debts exceed the available assets to pay the liabilities and debts. Here, the relative ability of spouses to pay the debt is considered. The interest here is to protect creditors.

Get Help With Your Marital Property Matters

Dividing marital property upon divorce or death of your partner is never an easy topic to discuss. Whether you are working out a prenuptial agreement or heading toward a divorce, you should consider getting legal advice.

The logistics of property division will depend upon which state you live in. You can call a divorce attorney near you to learn about your options.

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