Estates & Future Interest - Marital Property

Question 1

What are the rights of unmarried couples in most states?

Answer 1

Property rights may exist between unmarried cohabitants. But it varies by state.

Many states enforce express contracts between cohabitants concerning property rights.

Some states provide relief based on implied contracts, or unjust enrichment.

Question 2

What are rights upon death in modern common law states?

Answer 2

Elective Share has replaced dower and curtesy.

Surviving spouse may elect to either abide by terms of decedent spouse’s will or take a share (1/2 or 1/3) of all property the decedent owned at death.

Question 3

In a community property state what happens to property upon death or divorce?

Answer 3

Divorce - community property is divided equally between spouses.

Death - decedent spouse may transfer 1/2 of community property by will other half belongs to surviving spouse.

Question 4

What are the rights upon divorce in common law states?

Answer 4

Require equitable distribution of martial property at divorce.

• Which spouse holds title to property is not important.
• Court will distribute property based on income, duration of marriage, occupations, etc.

Question 5

What is the community property system?

Answer 5

Views marriage as an economic partnership in which the husband and wife’s contributions are valued equally.

Earnings of either spouse during marriage and all proceeds from those earnings are deemed community property.