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Marital Property laws - Information on the law about Marital Property

dower curtesy abolished community

Marital property is generally considered to be all property acquired by a couple during their marriage or earned by either spouse during their marriage. It is all property owned by the marital estate. Generally, gifts or inheritances to either spouse along with any money or property earned prior to the marriage are the separate property of that spouse unless it is somehow "converted" into marital property.

There are two general categories that define marital property: community property and not community property. Nine states recognize community property. In these states, all property or income acquired by either spouse during marriage is considered equally owned by both spouses for purposes of the division of the property upon death or divorce or for purposes of business transacted by either spouse. This property ownership scheme has its roots in Spanish Law. Consequently, community property laws are found generally in those states that were originally possessions of or which in some way owe some of their legal heritage to colonial Spain.

If a state is not a community property state, various rules and schemes apply to define the nature of marital property. For example, there are a number of legal options from which a couple may choose when they decide to acquire property together. They may choose joint tenancy, tenancy by the entirety, or tenancy-in-common. In most states, the character of the property in question is determined by the nature of the property itself, the nature of the event giving rise to the need for the particular characterization of property ownership, and the manner, agreement, and instrument by which it was acquired. If the event giving rise to the need for the characterization is divorce, a set of rules will apply to each portion of the marital property, depending on how it was acquired and what kind of property it is: bank account, primary home, automobile, etc.

Upon an individual's death, property will be distributed subject to the individual's legal will or trust, the rules of marital property, and/or intestate succession. A very old common law scheme of division of marital property is known as "dower and curtesy." Dower was a way that a woman, who traditionally was not given the opportunity to own property while married, was given a share of her husband's estate upon his death. Dower generally preserved a percentage share of the value of the estate. Curtesy is essentially the same system in reverse, giving the husband a percentage share of his wife's estate. However, dower and curtesy has generally become obsolete in the modern world. Laws of descent and distribution, divorce and property distribution, and use of joint tenancies, tenancies-in-common, and tenancies by the entirety have largely made it unnecessary to be concerned with the surviving spouse being left with no part of the marital property.

Eleven states have adopted the Uniform Disposition of Community Property Rights at Death Act (UDCPRDA). This protects couples that move from a community property state into one where community property is not recognized, from drastic changes in the character and disposition of their property upon the death of a spouse. This is an important consideration in today's highly mobile society.

Table 28: Marital Property

State Community Property Dower And Curtesy
ALABAMA No Dower and curtesy abolished (§43-8-57)
ALASKA Yes. Community Property Act §34.77.030 Curtesy: Uniform Probate Code adopted (§§13.06.005, et seq.); dower has been abolished
ARIZONA Yes (§25-211) Dower and curtesy abolished (§1-201)
ARKANSAS No, but Uniform Disposition of Community Property Rights at Death Act (UDCPRDA) adopted. (§§28-12-101, et seq.) Dower allowed; common law curtesy abolished; statutory allowance called curtesy provided (§28-11-301 et seq.)
CALIFORNIA Yes (Fam. C. §751 §770) No estate by dower or curtesy (Prob. C. §6412)
COLORADO No. But Uniform Disposition of Community Property Rights at Death Act (UDCPRDA) adopted. (§§15-20-101, et seq.) Curtesy and dower abolished (§15-11-112)
CONNECTICUT No, but Uniform Disposition of Community Property Rights at Death Act (UDCPRDA) adopted. (§§45a-458, et seq.) No dower or curtesy when marriage occurred after April 20, 1877 (§46b-36)
DELAWARE No Dower and curtesy abolished (12§511)
DISTRICT OF COLUMBIA No Dower and curtesy abolished (§19-102)
FLORIDA No, but Uniform Disposition of Community Property Rights at Death Act (UDCPRDA) adopted. (§§732.216, et seq.) Dower and curtesy abolished (§732.111); statutory right to elective share of surviving spouse recognized (§§732.201, et seq.)
GEORGIA No Dower and curtesy abolished (§53-1-3)
HAWAII No, but Uniform Disposition of Community Property Rights at Death Act (UDCPRDA) adopted. (§§510-21, et seq.) Statutory right to elective share of surviving spouse recognized. (Uniform Probate Code §§560:2-201, et seq.)
IDAHO Yes (§32-906) Curtesy and dower abolished (§32-914)
ILLINOIS No Dower and curtesy abolished as of 1/1/72 (755 ILCS 5/2-9)
INDIANA No Dower and curtesy abolished (§29-1-2-11)
IOWA No Curtesy abolished (§633.238); dower abolished (§633.211)
KANSAS No Dower and curtesy abolished (§59-505)
KENTUCKY No, but Uniform Disposition of Community Property Rights at Death Act (UDCPRDA) adopted. (§§391.210, et seq.) Yes, with exceptions (§§392.010, et seq.)
LOUISIANA Yes, with considerable exceptions (CC Art. 2334, et seq.) Unknown to the law of Louisiana
MAINE No Dower and curtesy abolished (T.18-A, §2-113)
MARYLAND No Dower and curtesy abolished (Est. & Tr. Art.§3-202)
MASSACHUSETTS No Curtesy abolished (Ch. 189, §1), but certain dower and curtesy rights (merged and together called "dower") remain

Table 28: Marital Property—Continued

State Community Property Dower And Curtesy
MICHIGAN No, but Uniform Disposition of Community Property Rights at Death Act (UDCPRDA) adopted. (§§557.261, et seq.) Dower (§§558.1, et seq.); no curtesy or dower allowed in community property (§557.214)
MINNESOTA No Provides for actions based on dower and curtesy or interest in lieu of same (§519.101)
MISSISSIPPI No Dower and curtesy abolished (§93-3-5)
MISSOURI No Dower and curtesy abolished (§474.110)
MONTANA No, but Uniform Disposition of Community Property Rights at Death Act (UDCPRDA) adopted. (§§72-9-101, et seq.) Dower and curtesy abolished (§72-2-122)
NEBRASKA No. unless can prove otherwise (§42-603) Dower and curtesy abolished (§30-104)
NEVADA Yes (§§123.130, 220, 230) Dower and curtesy abolished (§123.020)
NEW HAMPSHIRE No Dower and curtesy abolished (Ch. 560:3)
NEW JERSEY No Dower and curtesy abolished as to all property obtained after May 28, 1980 (3B:28-2); some rights exist re property obtained before that date (3B:28-1, et seq.)
NEW MEXICO Yes (§§40-3-6, et seq.) Dower and curtesy abolished (§45-2-112)
NEW YORK No, but Uniform Disposition of Community Property Rights at Death Act (UDCPRDA) adopted. (Estates, Powers and Trusts Laws §§6-6.1, et seq.) Certain dower rights for widow of marriage before September 1, 1930 (Real Property Law §§190, 190b); curtesy abolished (Real Property Law §189—certain rights remain for widower of woman who died on or before August 31, 1930)
NORTH CAROLINA No, however Uniform Disposition of Community Property Rights at Death Act adopted (§§31C-1, et seq.) Dower and curtesy abolished (§29-4)
NORTH DAKOTA No Dower and curtesy abolished (§14-07-09)
OHIO No Dower (§§2103.02; et seq.; 3105.10); curtesy abolished (§2103.09), husband has dower interest
OKLAHOMA Repealed (§43-215) Dower and curtesy abolished (§84-214)
OREGON Repealed effective April 11, 1949 (§108.520), but Uniform Disposition of Community Property Rights at Death Act (UDCPRDA) adopted. (§§112.705, et seq.) Dower and curtesy abolished for surviving spouse of person who dies after July 1, 1970 (§§112.685-695)
PENNSYLVANIA No. State Supreme Court held community property law (§§48-201, et seq.) invalid under state constitution (357 Pa. 581, 55 A.2d 521) Share of spouse's estate which is allotted to surviving spouse by rules of intestate succession or by election against will is in lieu and full satisfaction of dower or curtesy at common law (§§20-2105)
RHODE ISLAND No Dower and curtesy abolished (§33-25-1)
SOUTH CAROLINA No Dower barred for divorced wife (§20-3-190)
SOUTH DAKOTA No Dower and curtesy abolished (§25-2-9)
TENNESSEE No Dower and curtesy, unless vested, abolished as of April 1, 1977 (§31-2-102)

Table 28: Marital Property—Continued

State Community Property Dower And Curtesy
TEXAS Yes (Fam. C. §§3.001–§§3.104; Prob. C. §§38, 45) Does not exist
UTAH No No dower and curtesy rights (§75-2-112)
VERMONT No Dower and curtesy rights set forth in §§ 14-461 to 474
VIRGINIA No, but Uniform Disposition of Community Property Rights at Death Act (UDCPRDA) adopted. (§§64.1-197, et seq.) Dower and curtesy abolished unless vested before January 1, 1991 (§64.1-19.2)
WASHINGTON Yes (§26.16.030) Dower and curtesy abolished (§11.04.060)
WEST VIRGINIA No Dower and curtesy abolished (§43-1-1)
WISCONSIN Adopted Uniform Marital Property Act with variations on January 1, 1986 (§§766.31) No dower or curtesy rights exist
WYOMING No, but Uniform Disposition of Community Property Rights at Death Act (UDCPRDA) adopted. (§2-7-720) Dower and curtesy abolished (§2-4-101)(b))
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over 1 year ago

I want to get married soon, however I'm waiting on a substantially large lawsuit settlement to come in. If I get married and then receive the settlement, will my new husband be entitled to half then? I live in Texas.

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about 2 years ago

My dad merried his girlfriend of 4 years, 4 days before he died of brain and lung cancer in the hospital. She had purposely kept me away from the ceremony because I, like everybody elese from my side of family was unaware of this even hapening. My dad and I were very close and I believe that he was not in his right state of mind to enter a merriage in general. As this is no here no there, I would like to know if indeed she is entitled to 1 third as inheritance.

I am working with an attorney to get this merriage anulled based on hospital/medical records but it appears to be not as cut and dry as I hoped for. It would be much appreciated if anybody has any valuable information to pass on.

Thank you.

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over 3 years ago

I have been married for two years, and bought a house with my wife about one year ago. We put both of our names on the DEED. My question lies in the fact that 100% of the down payment was money from the sale of a home I owned prior to our marriage. We are considering a divorce now, and I would like to know based on NY State Law if that would be considered Marital Property -- Did I convert my equity (was my own money) into marital property when we used it to buy the home we live in now.

Thank you
Ryan

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over 3 years ago

well i have a question if someone i know is getting a divorce and she sign her propert over to me and its comming back in my name while they are getting a divorce is the propert still mine and what are my rights

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over 3 years ago

My husband wants a divorce though I don't. We live in a mobile home he aquired years before we were married. He does not own the property however, well actually he does he's just hiding the fact and also property his father left him which he receives money from so it doesn't affect his SSI. Am I entitled to any part of the land or the mobile home if we divorce? We live in New York.

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almost 4 years ago

I was married in February of 2008, in Arkasnas. My husband previously owned the home we currently live in now. He has an 11 year old daughter, and I have an 18 and 20 year old. Neither of us have a will. If something should happen and he pass away, would I be entitled to any portion of the home/property?

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5 months ago

My husband and I are still married, however, we are in the process of a divorce in the state of GA. He was in a recent accident and now he is really forcing me to sign the divorce papers and take the parenting classes. Once before when I had a small law suit, I was told that his name had to go on the check because he was entitled to a portion of the money. Is this the same way for me considering the circumstances. I do not believe he has even told his accident attorney that he is married still.

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over 4 years ago

hi, i am kim. i was living with my boyfriend in 2000. we bought some land in louisiana together. we both signed the contract. we married in 2002, we are now getting a divorce. i paid most of the payments. we never had joint checking accounts. i kept real good records when ever he gave me money and what i put it towards. he now thinks he gets half the land because we are married. i made 89% of the payments and because of me the land is paid for. does he get half? thank you kim

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6 months ago

I am selling a home in Ohio and have a spouse who is Central American and resides in Spain. Is my spouse required to sign the buyer's offer documents and Closing papers for the sale? We were married outside the US.

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over 3 years ago

These are all good questions, why isn't anybody answering them?

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over 4 years ago

Hi, Im Donna, In 1999 I left after 31 years of a very abusive marriage. Together we purchased approx. 100 acres. In 2004 I found reason to beleive some had been sold. without my signiture or consent. I recieved nothing, now I petitioned for divorce with my share of property. he sold property by forging my name. Now wants me to pay existing morgages I cant afford an attorney. Can they make me pay? I was only income I already paid once.

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over 4 years ago

Hi, my name is Destanie and I was married on Aug. 16, 2007, I have left the marriage for numorouse reasons, but I have a question about my car. My husband gave me a 96 monte carlo for my 30th b-day 07/15/07. we were married a month later. I never put the car into my name, but i still have the original title with his signature on it, he has since then applied for a replacement title making the one I have no longer any good. I have not filed for divorce yet due to money, he kept all three auto and I have no means of transportation to aquire a job or even take my daughter to and from school. I also found out that my husband has now sold my car to a friend of his. I had planned on asking for it back in the divorce. is there anything I can do now?

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28 days ago

When you are in uncomfortable position and have no cash to move out from that, you will require to take the loan. Just because it will aid you unquestionably. I get sba loan every single year and feel myself OK because of this.

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about 1 month ago

I have been married for 19 years In 2001 we purchased a home together I was on the loan and the deed Later on years after we refinanced the house and the loan is in his name We are planning to get a divorce am I still entitled to half the house in the state of Florida

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4 months ago

I filed for divorce 9 months ago. My husband and I had both our properties appraised. Recently, I found out that his appraisal came in higher than mine on the most expensive home and he purposely had the appraiser change the existing documents to show the same appraisal as mine using different comparisons!! Is this legal in Arizona? Both of his appraisals show the exact same date but different values. Thank you.