State Marital Property Laws

Marital property laws dictate the respective rights of a married couple on property acquired before and during the marriage, including real estate, insurance policies, other assets, debts, and other financial obligations. These laws typically come into play when a married couple decides to divorce.

Summary of Marital Property Laws

All states have their own specific property laws. In general, these come into play during divorce or legal separation. A few marital property laws affect probate during intestate succession. The links below go to state-specific marital property laws. This section discusses property laws common to all states.

What Is Marital Property?

Marital property is all property acquired by both spouses during marriage. It may include a spouse’s property, which they use for the marital estate. Or it may include community property on which the couple spends their joint income.

In the event of a divorce or legal separation, all things considered community property are subject to division by the courts. The laws of the state determine property division.

Most states are common-law states. In these states, property division follows equitable division rules. Equitable division, or equitable distribution, means courts divide property fairly but not always equally.

Nine states are community property states. In these states, spouses divide property 50/50. State laws require both spouses to get equal amounts of the marital estate, even if they must sell marital assets and divide the profit divided.

What Assets Are Marital Assets?

The types of property subject to division under marital property laws are the same in virtually all states. They include:

• The marital home and other real property purchased during the marriage
• Joint bank accounts and investment portfolios
• Wages and income earned during the marriage
• Retirement plans and pensions that vest during the marriage
• Items of value purchased during the marriage, regardless of the name on the title

Some things are always the separate property of the spouse. In a few states, all property becomes marital property after marriage. In most states, separate property always includes:

• Property acquired before marriage
• Property excluded from marital assets by prenuptial agreements
• Gifts, bequests, and inheritances

In about half of the states, personal injury settlements are the separate property of the injured spouse. In the others, settlements become marital property.

Probate Laws

Marital property rights also come into play when one spouse dies. The surviving spouse gets a part of the deceased spouse’s personal property and marital property. Three states — Ohio, Arkansas, and Kentucky — still follow common-law “dower and curtesy” rules for marital property. Under these laws, a wife gets a life estate in the property when the husband dies. Most states have abolished dower and curtesy.

Estate planning laws and prenuptial and postnuptial agreements are part of the probate process. Spouses should consider their state’s marital property laws when making estate plans.

If you’re considering a divorce, contact a divorce attorney in your state.