Marital Property

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Last updated 11:11 PM on 4/10/26
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8 Terms

1
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Systems

Separate Property and Community Property

2
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Seperate Property

Once married, may still continue to hold and maintain property solely. No need for permission with this property

3
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Community Property

The earnings of either spouse or property purchased with said earnings are jointly owned

Property owned before the marriage or obtained through a gift or inheritance, before or during the marriage, remains separate property

If individual property is comingled with communal property or is used during the marriage, the whole may be transmuted into community property

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Old Common Law

Single women can own property

Once married, husband has life estate at time of married or acquired during

Exception for clothing and jewelry

Wife took from marriage what she took

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Death & Divorce w/ Community

Upon the death of a spouse, ½ of all community property and all separate property passes through the decedent’s estate

Upon divorce, 3 states say 50/50 and rest say equitable

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Death & Divorce w/ Separate Property

Upon the death of one of the spouses, the remaining spouse obtains a large share of the decedent’s estate, although the precise amount depends on the jurisdiction

OLD: Spouses entitled to 1/3 interest in inheritable property of other

MODERN: the surviving spouse is entitled to take a specified share of the decedent’s estate. However, they do not have to take this interest

SOME undermine causa mortis gifts to undermine
Divorce, equitable distribution considering misconduct

7
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Pre- and Post-Nuptual agreements

typically enforceable if they are written, signed, and notarized

Different Approaches:

(1)  Only full disclosure

(2)  Full Disclosure and minimal degree of fairness

(3)  Full disclosure and not unconscionable

(4) Some require no consideration while other say that the marriage is valid consideration for the contract.

SOME allow antenuptual agreements (not married but basically there)

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Married Women’s Property Act

Gets rid of dower and allows women to own property while married, separate or community