Husband and Wife - Property

Historically, wives were at a disadvantage as property owners. At common law, when a woman married, her personal possessions were considered to be the property of her husband. In addition, the husband was entitled to use the land she owned or subsequently inherited, and to retain rents and profits obtained from it. A married woman's right to own property was not incorporated into U.S. law until the mid-nineteenth century, with the Married Women's Property Acts. These laws allowed husbands to permit their spouses to own separate property. Women were also granted the right to enter contracts, sell land, write wills, sue and be sued, work without their husband's permission and keep their earnings, and in certain jurisdictions sue for injuries caused by their husbands.

Ordinarily, questions of who owns what property are brought to court only when a couple is obtaining a DIVORCE. Courts are otherwise reluctant to become involved in property disputes between a husband and wife. Various systems exist in the United States to determine who owns property in a marriage: a majority of states recognize separate property, whereas some adhere to COMMUNITY PROPERTY or equitable distribution doctrines.

The rule in separate-property states is that each person owns whatever items are in his or her name. In these states, various types of joint spousal ownership are recognized. A TENANCY BY THE ENTIRETY is a form of joint ownership whereby the husband and wife own all the property together. This type of arrangement ordinarily applies to real estate. In a tenancy by the entirety, neither spouse can sell the property or his or her interest in it independently. If the husband or wife dies, the remaining spouse has full survivorship rights.

In states that adhere to community property laws, the husband and wife are each given an equal interest in everything they own with the exception of the separate property of either individual. A majority of the property obtained by a husband and wife during a marriage is considered community property. State law defines precisely what is considered separate property. In general, separate property includes whatever each party brought to the marriage and anything either spouse individually inherits during the marriage.

Equitable distribution is a method of property distribution that considers both the economic and noneconomic contributions of each spouse to the marital relationship, as well as each spouse's needs. It is based on the theory that a marriage should be regarded as a partner-ship of equal individuals.

Disputes over property ownership may arise when one spouse dies. A majority of jurisdictions have eliminated the common-law rights of DOWER and curtesy, which require that a spouse receive a specific portion of an estate. As an alternative, when one party leaves a will that disinherits her or his spouse, the survivor ordinarily has the right to acquire an elective share of the estate, which typically amounts to approximately one-third of its value. In some jurisdictions, this right is given only to a surviving wife. Elective shares do not prevent the dissipation of an estate prior to death.

In separate-property states, if a husband or wife dies intestate (without leaving a will), statutes provide for the surviving spouse to acquire a specified portion of the decedent's property. A statute might, for example, prescribe that the surviving spouse can acquire a one-half interest in the estate. The size of the portion depends on whether there are surviving children.

The distribution of property between a husband and wife might also be affected by a PRE-MARITAL AGREEMENT, also called an antenuptial or prenuptial agreement. Premarital agreements are typically entered into by a man and woman before they are married, to arrange for the distribution or preservation of property owned by each spouse in the event of divorce or death.