Support Obligations

Laws regarding the rights, responsibilities, and liabilities of married persons (spouses) vary from state to state. Spouses generally have a duty to support each other financially during the marriage—and in some states this support obligation may continue after divorce for a number of years or for the remainder of a spouse’s lifetime in the form of spousal support or alimony.

Spouses also have the obligation to support their children until they reach the age of majority (18 years in most states).

Debts

In community property states, debts incurred by either spouse are presumed debts of both spouses (community debts). And in common law states, debts that benefit the couple and their family equally (food, clothing, rent, health insurance, etc.) are joint debts or liabilities.

Property Management Rights and Liabilities

Laws vary from state to state regarding the property management and ownership rights spouses have for property they owned before marriage (separate property) and for property they acquire during marriage (marital property).

Laws also vary from state to state regarding the liability of the spouses' separate property and marital property for debt and liability claims made by other persons or entities (third parties) during marriage.

Descent and Distribution Laws

Spouses also receive inheritance and property rights from each other. For example, if a spouse dies without a will (intestate), under most state statutes regarding inheritance rights for heirs and next of kin (descent and distribution laws) the surviving spouse will inherit much or all of the deceased spouse’s property.

Elective Share and Pretermitted Spouse Laws

Many states have abolished dower and curtesy in favor of “elective share” laws that allow the surviving spouse to take the property left to the surviving spouse in their spouse’s will, or the share that is provided by law—which is usually located in a state’s statutes—often in the probate or estates code.

These elective share laws may guarantee the surviving spouse one-third to one-half of the deceased spouse’s real property and personal property. And in some states the elective share laws provide that the amount of the elective share depends on the length of the marriage.

But some states still have dower and curtesy laws, and in addition to limiting a deceased spouse’s transfer by will of all property to someone other than their surviving spouse, these legal rights may also prevent a spouse from selling or transferring all of the spouse’s property during the spouse’s lifetime if it might jeopardize the other spouse’s dower or curtesy rights—unless the other spouse agrees to the sale or transfer.

Spouses may be allowed to waive their dower, curtesy, or elective share rights by signing a valid prenuptial or postnuptial agreement. Laws may vary from state to state regarding the type of document that is required to waive these rights.

Some states have laws (statutes) that provide inheritance rights in a deceased spouse’s property when the deceased spouse created a will before getting married and the surviving spouse is not included in the will.

These laws provide that a certain amount of the deceased spouse’s property goes to the surviving spouse. This statutory share of the estate is known as a pretermitted spouse share (a spouse omitted from or left out of the will) and is based on the presumption that the deceased spouse intended to leave some or all of the estate to the surviving spouse, but did not get around to changing or updating the will that was executed before the marriage.

Homestead, Exempt Property, and Family Allowance Rights

Many states have laws that exempt different forms of property (including the family home) from the creditors of a deceased spouse—preserving items of real and personal property for the surviving spouse and other household family members.

These laws vary from state to state but are usually located in a state’s statutes—often in the probate or estates code.

Spousal Testimonial Privilege

In criminal prosecutions, a spouse may refuse to testify against the spouse who is being prosecuted for a crime. This is known as the spousal testimonial privilege or the adverse spousal witness privilege. But the witness-spouse may choose to waive the privilege and testify against the defendant-spouse who is charged with a crime—even over the defendant-spouse’s objection.

The spousal testimonial privilege exists only during the marriage. And some states have eliminated the spousal testimonial privilege.

The spousal testimonial privilege is usually located in a state’s statutes. In the federal court system, the existence and application of the spousal testimonial privilege is determined by the courts rather than by statute and is therefore located in court opinions (cases) from the various federal circuit courts.

Confidential Marital Communications Privilege

Spouses have a communications privilege—also known as the confidential marital communications privilege. The confidential marital communications privilege applies in both civil and criminal cases and, with some exceptions, allows a spouse to refuse to testify about or produce documents evidencing any confidential communication made during the marriage. This privilege allows the other spouse to prevent any such testimony or document production.

The confidential marital communications privilege survives divorce or dissolution of the marriage and continues to protect communications made during marriage after the marriage ends.

The confidential marital communications privilege is usually located in a state’s statutes. In the federal court system, the existence and application of the spousal testimonial privilege is determined by the courts rather than by statute and is therefore located in court opinions (cases) from the various federal circuit courts.

In Texas, which is a community property state, spouses have a duty to support each other financially during the marriage. This obligation may extend beyond divorce in the form of spousal support or alimony, depending on factors such as the duration of the marriage and the spouses' financial circumstances. Parents are also required to support their children until they reach the age of majority, which is 18 years old in Texas. Regarding debts, those incurred during the marriage are generally considered community debts and are the responsibility of both spouses. Property acquired during the marriage is typically considered marital property, while property owned before the marriage remains separate property. However, the management and liability of both types of property can be complex and are subject to Texas state law. In the event of a spouse's death without a will, the surviving spouse has inheritance rights under Texas's descent and distribution laws, which often result in the surviving spouse receiving a significant portion of the deceased spouse's estate. Texas has elective share laws that may allow a surviving spouse to claim a portion of the deceased spouse's estate, overriding the terms of a will. Spouses in Texas can waive their rights to property through prenuptial or postnuptial agreements. If a will was made before marriage and the surviving spouse is not included, Texas law may provide for a pretermitted spouse share. Texas also has homestead and exempt property laws that protect certain property from creditors for the benefit of the surviving spouse and family. Regarding testimonial privileges, Texas recognizes both the spousal testimonial privilege, which allows a spouse to refuse to testify against the other in criminal cases, and the confidential marital communications privilege, which protects private communications made during the marriage even after divorce or dissolution.