Marital property is generally property that is acquired during marriage, is jointly owned by the spouses, and is subject to division upon divorce—whether the spouses reside in (1) an equitable distribution or common law property state or (2) in a community property state.
Marital property is distinct from separate property, which is generally property that a spouse acquired before marriage—or acquired by gift or inheritance during marriage—and is not subject to division upon divorce.
Community property states generally include Alaska, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. In these states, divorce courts generally start with the presumption that the marital property is owned equally by the spouses and will be divided equally upon divorce.
In other states—so-called equitable distribution or common law property states—the divorce court attempts to divide the spouses’ assets equitably (fairly) and may consider a spouse’s separate property in deciding to make an unequal division of the spouses’ marital property.
In practice, the difference between the division of assets in community property states and in equitable distribution states is sometimes not as great as it may seem, as the court in a community property state may have the discretion to divide the spouses’ community property on a 60-40, 70-30, or other unequal basis.
Dower and Curtesy
Dower (not to be confused with dowry) and curtesy refer to the mandatory, minimum legal rights or ownership of a married spouse in their deceased spouse’s property upon the death of the deceased spouse.
Before state legislatures enacted laws to prevent the surviving spouse from being disinherited of all of the deceased spouse’s property, courts recognized these minimum ownership rights by the surviving spouse in the deceased spouse’s real property (real estate) and personal property (all property or belongings other than real estate). These laws or rights created by courts are known as common law or common law rights.
Dower is a surviving wife’s interest in her deceased husband’s property. Dower laws varied from state to state (they still exist in a few states) with the surviving wife being entitled to a dower interest of a certain percentage of her husband’s real property and a certain percentage of his personal property, for example—even if the husband tried to otherwise dispose of those portions of his property before he died or after he died (in his will).
Similarly, curtesy is a surviving husband’s interest in his deceased wife’s property. Curtesy laws varied from state to state (they still exist in a few states) with the surviving husband being entitled to a curtesy interest of a certain percentage of his wife’s real property and a certain percentage of her personal property, for example—even if the wife tried to otherwise dispose of those portions of her property before she died or after she died (in her will).
Elective Share 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 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.
Waiver of Dower, Curtesy, or Elective Share Rights
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.
Homestead Rights
Some state laws grant a surviving spouse the right to remain in the homestead the spouse shared with their deceased spouse for the remainder of the surviving spouse’s lifetime. And some states provide for an allowance in lieu of (instead of) of homestead and exempt property rights.
When these homestead laws do exist, they vary from state to state and are often located in the state’s constitution or in the state’s statutes.
Exempt Property and Family Allowance
Some state laws protect or exempt from certain items of property from creditors’ claims—including the homestead—for the use of a surviving spouse and children (including unmarried adult children) of a deceased spouse.
And some states provide a family allowance from the estate for the benefit of the surviving spouse, minor children, and incapacitated adult children that is protected or exempt from the claims of creditors.
Other Laws
Community property laws in community property states—and property that is titled in both spouses names in common law property states—may also affect a spouse’s ability to sell or transfer real or personal property during a spouse’s lifetime or upon death (by will).
In Texas, which is a community property state, marital property is considered to be owned equally by both spouses and is generally divided equally upon divorce. Marital property includes assets acquired during the marriage, while separate property consists of assets acquired before marriage or received as a gift or inheritance during the marriage, and is not divided upon divorce. Texas has abolished traditional dower and curtesy rights in favor of elective share laws, which allow a surviving spouse to claim a portion of the deceased spouse's estate if they are not satisfied with the inheritance. The elective share is often a percentage of the estate and may vary based on the length of the marriage. Texas also recognizes homestead rights, which protect the surviving spouse's right to occupy the marital home for life or until remarriage, and exempt property and family allowance laws, which protect certain property from creditors and provide financial support for the surviving spouse and children. Spouses in Texas may waive their rights to community property, elective shares, or homestead rights through a valid prenuptial or postnuptial agreement.
