Community property

Community property
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Community property is a marital property regime that originated in civil law jurisdictions and is now also found in some common law jurisdictions. The states of the United States that recognize community property are primarily in the West; it was inherited from Mexico's ganancial community system,[1] which itself was inherited from Spanish law (a Roman-derived civil law system) and ultimately from the Visigoths.[2] Even Louisiana, in a rare departure from the Napoleonic code, was forced to adopt the ganancial community system while under Spanish rule (renamed "community of acquests and gains"), thus ousting the traditional French community of movables and acquests.[3]

Map of the United States highlighting community property states

In a community property jurisdiction, most property acquired during the marriage (except for gifts or inheritances) is owned jointly by both spouses and is divided upon divorce, annulment or death. Joint ownership is automatically presumed by law in the absence of specific evidence that would point to a contrary conclusion for a particular piece of property.[4] The community property system is usually justified by the idea that such joint ownership recognizes the theoretically equal contributions of both spouses to the creation and operation of the family unit.[5]

Division of community property may take place by item, by splitting all items or by value. In some jurisdictions, such as California, a 50/50 division of community property is strictly mandated by statute,[6] meaning that 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 (i.e., 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".[7]

Property that is owned by one spouse before the marriage is the separate property of that spouse, unless the property is "transmuted" into community property. The rules for this vary from jurisdiction to jurisdiction.



In the United States there are nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. Puerto Rico allows property to be owned as community property also as do several Indian jurisdictions. Alaska is an opt-in community property state; property is separate property unless both parties agree to make it community property through a community property agreement or a community property trust.

If property is held as community property, each spouse technically owns an undivided one-half interest in the property. This type of ownership applies to most property acquired by the husband or the wife during the course of the marriage. It generally does not apply to property acquired prior to the marriage or to property acquired by gift or inheritance during the marriage. After a divorce, community property is divided equally in some states and according to the discretion of the court in the other states.

It is extremely important to bear in mind that there are no two community property states with exactly the same laws on the subject. The statutes or judicial decisions in one state may be completely opposite to those of another state on a particular legal issue. For example, in some community property states (so-called "American Rule" states), income from separate property is also separate. In others (so-called "Civil Law" states), the income from separate property is community property. The right of a creditor to reach community property in satisfaction of a debt or other obligation incurred by one or both of the spouses also varies from state to state.

Community property has certain federal tax implications, which the Internal Revenue Service discusses in its Publication 555. In general, community property may result in lower federal capital gain taxes after the death of one spouse when the surviving spouse then sells the property. Some states have created a newer form of community property, called "community property with right of survivorship." This form of holding title has some similarities to joint tenancy with right of survivorship. The rules and effect of holding title as community property (or another form of concurrent ownership) vary from state to state.

Because community property law affects the property of all married persons in the states in which it is in effect, it can have catastrophic consequences upon dissolution of the marriage from the perspective of the spouse forced to share a valuable asset which he or she thought was separate property. Indeed, one sign of community property's importance is that the states of Arizona, California, Idaho, Louisiana, and Texas have made it a mandatory subject on their bar examinations, so that all lawyers in those states will be able to educate their clients appropriately. Consumers who are considering how to hold property during marriage should either research reliable legal source materials, or consult with a family lawyer, an estate planning lawyer, a Certified Public Accountant, or an Enrolled Agent.


Often a new couple acquires a family residence. If the marriage terminates in subsequent years, there can be difficult community property problems to solve. For instance, often there is a contribution of separate property; or legal title may be held in the name of one party and not the other. There may also have been an inheritance or substantial gift from the family of one of the spouses during the marriage, whose proceeds were used to buy a property or pay down a mortgage. Case law and applicable formulas vary among community property jurisdictions to apply to these and many other situations, to determine and divide community and separate property interest in such a residence and other property.

Community property issues often arise in divorce proceedings and disputes after the death of one spouse. These disputes can often be avoided by proper estate planning during the spouses' joint lifetime. This may or may not involve probate proceedings. Property acquired before marriage is separate and belongs to the spouse who acquired it. Property acquired during marriage is presumed to belong to the community estate except if acquired by inheritance or gift, or by exchange for other separate property. This definition leads to numerous issues that can be difficult to ascertain. For instance, where a spouse owns a business when marrying, it is clearly separate at that time. But if the business grows during the marriage, then what of the additional property acquired during marriage? Do they not result from labor of the spouses? Were some of the funds that were used to pay for the property community funds while a portion of the funds were separate property?

Community property may consist of property of all types, including real property ("immovable property" in civil law jurisdictions) and personal property ("movable property" in civil law jurisdictions) such as accounts in financial institutes, stocks, bonds, and cash.

A pension or annuity may have first been acquired before a marriage. But if contributions are made with community property during marriage, then proceeds are partly separate property and partly community property. Upon divorce or death of a party to the marriage, there are rules for apportionment.

Options are also difficult to ascertain. A stock option is a right to purchase shares of a company at a fixed price. Companies with growth potential sometimes award stock options as compensation to employees, during times when there is not enough money to pay a suitable salary. By accepting a stock option for compensation, an employee invests his or her own trust in the belief that he or she will help make the company acquire a higher value. Thereafter, the employee works and contributes value to the company. If the company later acquires a higher share valuation, then the employee may "cash in" his options by selling them at the fair market value. The employee's trust in this future value motivates his work without immediate compensation. That effort has value. If the marriage is terminated before the shares are cashed in, then the parties must decide how to apportion the community property portion of the options. This can be difficult. Case law precedents are not yet available for all situations involving stock options.

Quasi-community property

Quasi-community property is a concept recognized by some community property states. For example, in California, quasi-community property is defined by statute as

"all real or personal property, wherever situated, acquired before or after the operative date of this code in any of the following ways: (a) By either spouse while domiciled elsewhere which would have been community property if the spouse who acquired the property had been domiciled in this state at the time of its acquisition. (b) In exchange for real or personal property, wherever situated, which would have been community property if the spouse who acquired the property so exchanged had been domiciled in this state at the time of its acquisition.[8]

Typically, such property is treated as if it were community property at the time of divorce or death of a spouse, but in California, at least, property acquired while married and domiciled in a non-community property jurisdiction does not become community property just because the married parties move to a community property jurisdiction. It is the new event of divorce or death while domiciled in the community property state that allows that state to treat such property as quasi-community property.[9] As of 2007, only Washington, California, New Mexico and Arizona have such laws.[10]

See also

  • Van Camp accounting, one of two methods used in California for determining the community property interest in a separate business, where one of the spouses has contributed labor to the business
  • Pereira accounting, the other such method


  1. ^ The half-borrowed term ganancial (from Sp sociedad de gananciales) was used in some early U.S. community property opinions, such as Stramler v. Coe, 15 Tex. 211, 215 (1855).
  2. ^ Jean A. Stuntz, Hers, His, and Theirs: Community Property Law in Spain and Early Texas, (Lubbock, Texas: Texas Tech University Press, 2005), 1-31. This source explains at length the Visigoths' legal protections for the property rights of married women and how later legal systems on the Iberian peninsula continued such rights.
  3. ^ The author of the Louisiana Code was Moreau Lislet; see Hans W. Baade, "Transplants of Laws and of Lawyers", [Doc], retrieved 3 Dec. 2010 <[1]>.
  4. ^ See v. See, 64 Cal. 2d 778 (1966). Chief Justice Roger J. Traynor of the Supreme Court of California wrote: "If funds used for acquisitions during marriage cannot otherwise be traced to their source and the husband who has commingled property is unable to establish that there was a deficit in the community accounts when the assets were purchased, the presumption controls that property acquired by purchase during marriage is community property. The husband may protect his separate property by not commingling community and separate assets and income. Once he commingles, he assumes the burden of keeping records adequate to establish the balance of community income and expenditures at the time an asset is acquired with commingled property." The See family, of course, was the family that founded See's Candies, a major manufacturer and retailer of candy on the West Coast of the United States.
  5. ^ See Meyer v. Kinzer and Wife, 12 Cal. 247 (1859). Chief Justice Stephen Johnson Field of the Supreme Court of California wrote: "The statute proceeds upon the theory that the marriage, in respect to property acquired during its existence, is a community of which each spouse is a member, equally contributing by his or her industry to its prosperity, and possessing an equal right to succeed to the property after dissolution, in case of surviving the other."
  6. ^ See California Family Code section 2550.
  7. ^ See In re Marriage of Eastis, 47 Cal. App. 3d 459 (1975).
  8. ^ California Family Code Section 125
  9. ^ Addison v. Addison (1965) 62 Cal.2d 558, 399 P.2d 897.
  10. ^ Divorce Divorce legal resources

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