Community property

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Community property (United States) also called community of property (South Africa) is a separate 50% marital ownership interest in property acquired heretofore and hereafter during marriage by either spouse in each other’s property, and subject to division upon divorce or death of one of them. Additionally, property owned by both spouses during marriage is referred to as joint-property, owned 100 % by the spouses, together as one. Former surviving spouses who may receive an inheritance, unless they have remarried, possess a community property interest, if their marriage lasted more than 9 months.

Community property is treated as that spouse's separate interest and transmutes into actual property in the event of divorce or death. Community property can also be significantly relevant in probate law, during the disposition of a will.

The provisions of law regarding community property are part of the Family code and within the family court jurisdiction. Community property marital interest exists in many countries around the world including Sweden,[1] Germany,[2] Italy,[3] France,[4] South Africa[5] and parts of the United States.[6] In civil law countries such as Spain, France and Germany, spouses can generally select one of several matrimonial regimes to divide property, with community property being one option, along with the separate property system and a participation system.[7][8][9]

Variations

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Community of acquests and gains

Each spouse owns a separate 50% interest in all property acquired heretofore and hereafter during marriage, unless such property in transmuted to joint-tenancy by adding name of a spouse to the deed. To except property acquired by gift which ownership can not be ascertained, or by inheritance which does not occur during marriage, since inheritance is property passing from a deceased spouse to the surviving spouse which traces to separate property acquired heretofore marriage, but remained a property interest during, is acquired after divorce or death as separate property. This genre of community property is also called "ganancial community property."

Community of profit and loss

This is similar to the above, but liabilities ("losses") are separate property.

Community of personal and marital property

Community property consists of all property, personalty and realty, acquired during the marriage; and all personalty acquired before the marriage. Realty acquired before marriage is separate property.

Limited community property

Similar to community of acquests and gains but certain marital property is separate property.

Universal or absolute community property

All pre-marital and marital property is community property. However, if there are children from a prior marriage, the property associated with that marital community may be segregated from the community property of a subsequent marriage, to ensure the children of the prior spouse have an inheritance.

Jurisdictions

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Custom of Paris in New France

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Russia

In Russia, community property was introduced by the Soviet government in 1926. Prior to that, laws evolved by the late 18th century dictated separate property regime, so a married woman was (at least in theory) in full charge of her property, including the dowry and whatever she acquired personally during the marriage. The new Soviet system replaced this with a limited form of community property, namely community of acquisitions, and it survives to the present day. The only significant change, made in 1995, was the introduction of marital agreement which didn't exist under the Soviet law. Such an agreement may be signed at any time before or after conclusion of the marriage. It may regulate the spouses' rights on a basis entirely alien to the statutory regime, but shouldn't put any of them (especially one who cannot provide for themselves) into a clearly unfavorable position.[10]

South Africa

Script error: No such module "Labelled list hatnote". In South Africa, if a couple does not sign an antenuptial contract, before a notary public, which is subsequently registered at a deeds office, prior to marriage, they are married in community of property, which means that all of their assets and liabilities (even those acquired before the marriage) are merged into a joint estate during their marriage, in which each spouse has an undivided half-share. Each spouse has equal power to deal independently with the estate, except that certain major transactions require the consent of both spouses.[11] One of the consequences of community of property in South Africa is that if one spouse is declared insolvent (bankrupt) during the marriage, the other also becomes insolvent, a potentially devastating consequence.[12]

United States

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File:Community property states.svg
Map of the United States with community property states in red. Additionally, Alaska, Florida, Kentucky, and Tennessee are elective community property states, and of the five inhabited US territories, Puerto Rico and Guam are community property jurisdictions.

The United States has nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.[13] Four other states have adopted optional community property systems. Alaska allows spouses to create community property by entering into a community property agreement or by creating a community property trust.[14] In 2010, Tennessee adopted a law similar to Alaska's and allows residents and non-residents to opt into community property through a community property trust.[15] More recently, Kentucky adopted an optional community property system in 2020, allowing residents and non-residents to establish community property trusts.[16] Finally, in 2021 Florida adopted a similar law, allowing citizens and noncitizens to establish community property trusts.[17] The commonwealth of Puerto Rico allows property to be owned as community property also[13] as do several Native American jurisdictions.

Division of community property may take place by item by splitting all items or by values. In some jurisdictions, such as California, a 50/50 division of community property is strictly mandated by statute[18] so the focus then shifts to whether particular items are to be classified as community or separate property. In other jurisdictions, such as Texas, a divorce court may decree an "equitable distribution" of community property, which may result in an unequal division of such. In non-community property states property may be divided by equitable distribution. Generally speaking, the property that each partner brings into the marriage or receives by gift, bequest or devise during marriage is called separate property (not community property). See division of property. Division of community debts may not be the same as division of community property. For example, in California, community property is required to be divided "equally" while community debt is required to be divided "equitably".[19]

Notes

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  1. ↑ Script error: No such module "citation/CS1".
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  4. ↑ Script error: No such module "citation/CS1".
  5. ↑ Script error: No such module "citation/CS1".
  6. ↑ Script error: No such module "citation/CS1".
  7. ↑ Script error: No such module "citation/CS1".
  8. ↑ Ramos Pazos, René (2007). Derecho de Familia. Santiago: Editorial Jurídica de Chile. pp. 158–160.
  9. ↑ Tous, P., and Éric Fongaro. Droit international privé patrimonial de la famille. LexisNexis, 2017.
  10. ↑ Script error: No such module "citation/CS1".
  11. ↑ Script error: No such module "citation/CS1".
  12. ↑ Script error: No such module "citation/CS1".
  13. ↑ a b Script error: No such module "citation/CS1".
  14. ↑ See Alaska Stat. §§ 34.77.020 – 34.77.995
  15. ↑ Script error: No such module "citation/CS1".
  16. ↑ Kentucky Revised Statutes §§ 386.620, 622, 624.
  17. ↑ Script error: No such module "citation/CS1".
  18. ↑ See California Family Code section 2550.
  19. ↑ See In re Marriage of Eastis, 47 Cal. App. 3d 459 (1975).

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References

  • Gail Boreman-Bird. Cases and Materials on California Community Property, 10th edn. Revised by Jo Carrillo. St. Paul, Minn.: West Academic Publishing, 2011.
  • Jo Carrillo. Understanding California Community Property Law. New Providence, NJ: LexisNexis, 2015.
  • Jan P Charmatz & Harriet Spiller Daggett, eds. Comparative Studies in Community Property Law. Baton Rouge: Louisiana State University Press, 1955 (repr: Westport, Conn.: Greenwood Press, 1977).
  • Charlotte K. Goldberg. Examples & Explanations: California Community Property, 5th edn. NY: Wolters Kluwer, 2016.
  • Robert L. Mennell & Jo Carrillo. Community Property in a Nutshell, 3rd edn. St. Paul, Minn.: West Academic Publishing, 2014.
  • William A. Reppy Jr. Community Property, 18th edn. Chicago: Thomson/BarBri Group, 2003.
  • William A. Reppy Jr., Cynthia A. Samuel, & Sally Brown Richardson. Community Property in the United States, 8th edn. Durham, NC: Carolina Academic Press, 2015.

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