Property Division at Divorce or Death for Married Couples

23 Pages·2010·0.31 MB·English

Property Division at Divorce or Death for
Married Couples Migrating Between
Common Law and Community Property States
by Kenneth W. Kingma
St. Louis, Missouri*
Editor’s Synopsis: This article identifies and This determination will be made more difficult
explores the property disposition issues that can arise when married couples have migrated between com-
upon dissolution of marriage or death of a spouse mon law and community property states because of
when a married couple has resided in more than one the differences between the common law property
state. As explained in the article, particularly difficult system and the community property system.1 An
problems may exist when the couple has migrated from estate planner, in that event, will have to delve into
a common law state to a community property state or both property systems, the differences of which can
vice versa. Accompanying the article are Appendix A seem like two worlds colliding. But even though
and Appendix B which illustrate how property some trepidation may set in when the planner
acquired in a common law jurisdiction will be disposed engages both systems, the planner will soon deter-
of in each of the community property states upon mine that each system deals in some fashion with the
divorce or death of a spouse. other system in connection with the division of prop-
erty upon divorce or death of spouses who acquired
Introduction property while domiciled in one system prior to
migrating to the other system.
In today’s mobile society an individual may live When the estate planner engages both property
and work in many states over the span of a career. systems,the planner will also discover that one prop-
The individual may initially live in one state and erty system may, in connection with dissolution of
acquire property there as a single person, then move marriage or probate proceedings,alter the ownership
to another state, get married, and acquire property rights of property acquired under the other property
there, and subsequently move with his or her family system. In that event, the planner may question
to one or more other states and acquire property in whether there is an unconstitutional taking of prop-
each of those states. If death or divorce occurs, an erty or a violation of some other constitutional right.
estate planner may be called upon to assist in deter- This article addresses the approaches taken by
mining the following: common law and community property states in deal-
ing with property brought into those states by migrat-
• The property rights of each spouse with ing spouses. This article also addresses the issue
respect to property acquired in each state; whether state modification of property rights of
migrating spouses upon divorce or death results in an
• Whether any spousal agreements exist that unconstitutional taking of property.
may affect property rights; and
Property Systems in the United States
• Whether the law of the state where a dissolu-
tion or probate proceeding is pending will Two property systems in the United States deal
modify property rights as a result of death or with marital property (or property acquired by either
divorce. spouse during coverture2)—the common law property
* Copyright 2009 by Kenneth W. Kingma. All rights Annual Meeting,March 2-7,1999).
reserved. 2 Frank L. Spring, In-Migration of Couples from Common
1 For instance, the estate planner may have to consider the Law Jurisdictions: Protecting the Wife at the Dissolution of the
following for clients owning community property:(i) legal princi- Marriage, 9 N.M. L. REV. 113, 113 (Winter 1978-79). The term
ples employed to determine source of assets; (ii) the affect of title “coverture”is defined as the condition of being a married woman.
on asset classification; and (iii) presumptions and rules when Black’s Law Dictionary 373 (7th ed. 2003). Under former law,the
source of assets cannot be traced. Jerry A. Kasner and Alvin J. condition of a woman under coverture was that she could sue only
Golden, An Overview of Community Property Law C-5 (ACTEC through the personality of her husband. Id.
35 ACTEC Journal 74 (2009) © 2009 The American College of Trust and Estate Counsel. All Rights Reserved.
system and the community property system.3 Under ership between spouses in any property acquired
the common law property system originating in the through the labor and industry of either spouse during
common law of England,4 the ownership of property marriage.10 Upon termination of a marriage in a com-
acquired during marriage is determined through evi- munity property system at divorce or death, the joint
dence of title and possession.5 When a marriage termi- economic contribution to marriage is recognized
nates at divorce or death in a common law jurisdiction, through this right of co-ownership.11
the spouses’joint economic contribution to marriage is
recognized by statutorily-imposed “sharing provi- Estate Planning Upon Migration
sions.”6 Those sharing provisions are applicable to
property acquired during marriage that may be owned When married couples plan to migrate from a
jointly or individually.7 common law jurisdiction to a community property
On the other hand, the community property sys- jurisdiction or vice versa, or they plan to migrate
tem,which was brought to America by the Spanish and between common law jurisdictions12 or community
French8 and is recognized in a minority of jurisdic- property jurisdictions,13 they should engage in estate
tions,9initially provided an automatic right of co-own- planning at the time of migration. Planning is impor-
3 Merrie Chappell, A Uniform Resolution to the Problem a ERTY § 1.3 (3rd ed. 2005) (noting that Louisiana derived its law
Migrating Spouse Encounters at Divorce and Death,28 IDAHOL. from the French while the remaining seven traditional community
REV. 993,993 (1992). property states were former Mexican colonies that derived their
4 Chappell,supran. 3,at 993. law from Spain).
5 Under the common law system of marital property,spouses 10 WILLIAMQ. DEFUNIAK& MICHAELJ. VAUGHN,PRINCIPLES
separately own the property each acquires,unless they agree other- OF COMMUNITY PROPERTY 19 (2d ed. 1971). See also JOHN R.
wise. JESSEDUKEMINIER& STANLEYM. JOHANSON,WILLS,TRUSTS PRICE,PRICEONCONTEMPORARYESTATEPLANNING§ 3.23 (2d ed.
ANDESTATES,369-70 (4th ed. 1990). 2000) (“Community property states all treat a husband and wife as
6 Examples of statutorily-imposed sharing provisions upon partners who are presumed to own equal one-half interest in prop-
divorce are equitable distribution and alimony statutes. Examples erty acquired during marriage.”) and JACOBS,supran. 8,at §§ 1.4,
of such provisions upon death are elective or forced share statutes. 2.4 and 2.5 (acknowledging the double ownership theory as the
Chappell,supranote 3,at 993. predominant theory of community property ownership in the Unit-
7 See the discussion below regarding equitable distribution in ed States). Approximately 40 years ago,a husband generally had
common law states under the all-property method or dual classifi- greater managerial powers over community property than his wife,
cation method of dividing property. Seetext accompanying nn. 39 but sweeping legislative changes made in the 1970s gave each
through 53,infra. spouse essentially the same powers to manage and control commu-
8 4 THOMAS A. JACOBS, ARIZONA PRACTICE—COMMUNITY nity property. PRICE,supra,at § 3.23.
PROPERTYLAW§ 1.1 (3rd ed. 2004). Community property brought 11 Spring,supranote 2,at 115. According to TURNER,supra
to America by the Spanish and French originated with the German- n. 9,at § 2.5:
ic tribes. Id. “So while the development of community property “It is extremely important to understand that commu-
has been equated with the emancipation of women,historically it nity property is more than a system for dividing prop-
originated among what have been considered more primitive cul- erty upon divorce; it is also a system for dividing prop-
tures where the wife actively shared the daily perils and struggles erty upon death and a system for determining owner-
as well the gains from such struggles.” Id. ship of property during the marriage. This fact has
9 There are eight traditional community property jurisdic- immense significance,for these three goals of commu-
tions in the United States (Arizona, California, Idaho, Louisiana, nity property law sometimes conflict.”
New Mexico,Nevada,Texas and Washington),two of which (Cali- For instance, by adopting an inception of title rule, third
fornia and Texas) are among the three most populous states in the party creditors are able to determine at any time whether an asset is
country. Wisconsin adopted the Uniform Marital Property Act community property and each spouse’s ownership interest in that
effective January 1,1986,which essentially created a community property. However,a spouse’s important post-inception contribu-
property system. Alaska has an “opt-in”community property sys- tions to the property are sometimes undervalued by that system,
tem (designed primarily to achieve a new basis at death) that may due to the presumption that spouses contribute equally to the com-
or may not be treated as a community property for federal tax pur- munity. Seethe text accompanying n. 51,infra.
poses. Accord,Alvin J. Golden,Planning for Retirement Benefits: 12 Some common law jurisdictions have tenancy by the entire-
Troublesome Issues—Community Property,43 Heckerling Institute ty property and some do not,so planning is important here.
On Estate Planning (Special Session IV-A 2009); JACOBS,supran. 13 In Idaho,Louisiana,Texas and Wisconsin the income from
8, at § 1.2; DAVIDWESTFALL & GEORGE MAIR, ESTATE PLANNING separate property is community property,while in the other com-
LAWANDTAXATION§§ 4.01 and 4.06 (2009) (stating that the elec- munity property jurisdictions income from separate property is
tive feature of the Alaska act makes it doubtful that the act will separate property,so planning is important when spouses migrate
have the effect of creating community property for federal tax pur- between community property jurisdictions. PRICE,supran. 10,at
poses); and BRETTR. TURNER,EQUITABLEDISTRIBUTIONOFPROP- § 3.28.3; JACOBS,supran. 8,at § 3.5.
35 ACTEC Journal 75 (2009)
tant in that instance because property rights and tax the separate property of one spouse. This action could
consequences are affected by the characterization of also be taken if the couple intends to migrate from a
property as separate,community or marital property. community property state to a common law state.18
Furthermore, if a married couple migrates from
Step-Up/Step-Down in Basis Planning a common law state to a community property state,
or from one community property state to another,
It is typical for married couples who migrate to or and at least one spouse brings separate property into
between community property jurisdictions to change or the new state of domicile, the estate planner should
confirm the character of property by agreement, con- advise the couple as to whether the income of the
veyance, or partition, especially when they know the separate property will be treated as separate proper-
initial character of that property.14 If they do not know ty or community property following the move. For
the character of property they own, they can simply example, in Idaho, Louisiana,Texas and Wisconsin,
enter into an agreement to specify their respective the income of separate property will be community
interests in such property.15 Interspousal agreements, property unless the spouses agree in writing that
though,have tax consequences as well as ethical issues part or all of such income will also be the separate
when an estate planner represents both spouses.16 property of the owner spouse.19
For example, if a married couple migrates from a When the income of separate property is treated as
common law state to a community property state and community property, a question exists as to whether
brings with them property that is titled jointly between the non-owner spouse has a retained income interest
them as tenants in common,joint tenants,or tenants by that will cause the value of such property to be includ-
the entirety, they might be willing to forego certain ed in his or her gross estate under section 2036 of the
benefits associated with each type of ownership by Internal Revenue Code of 1986. That question was
treating such property as community property in order resolved under Texas law, where the non-owner
to obtain a step-up in basis for the entire community spouse’s interest in that income was determined to be a
property at the first spouse’s death. Conversely,if any mere expectancy that did not rise to the level of a
property acquired or converted into community proper- retained right under section 2036.20
ty declines in value, the couple may wish to avoid a
step-down in basis for the entire property upon the Revocable Trust Planning
death of the first spouse by entering into an agreement
in which they agree to convert or transmute such prop- Married couples often use revocable trusts for
erty into undivided interests of separate property (e.g., estate planning and probate avoidance purposes. In
tenancy in common or a true joint tenancy), to the common law states, each spouse may have a revoca-
extent local law permits such separate property.17Alter- ble trust, but, as the federal estate tax applicable
natively,they may agree to treat all of such property as exclusion amount has increased over the years,spous-
14 PRICE,supranote 10,at § 3.24,§ 3.29 (discussing Califor- erty upon the death of a spouse,and that spousal rights in commu-
nia, Nevada, Washington, Wisconsin and Texas) and § 3.29A nity property funds used to purchase real property in a common
(Supp. 2006) (discussing non-pro rata division agreements in Cali- law state will continue in the property purchased and will be pro-
fornia and Washington). See alsoThomas M. Featherstone,Jr. and tected, if necessary, at the death of a spouse by a court-imposed
Amy E. Douthitt,Changing the Rules by Agreement:The New Era trust. SeeRev. Rul. 72-443,1972-2 C.B. 531,and the treatises and
in Characterization,Management,and Liability of Marital Proper- cases cited there. See alsoPrice,supran. 10,at §3.36.
ty, 49 BAYLOR L. REV. 271, 321-22 (1997) (discussing, among 19 PRICE,supran. 10,at § 3.28.3; WESTFALL& MAIR,supran.
other states,Arizona and New Mexico). 9,at § 4.06 (agreements that make income from separate property
15 PRICE,supranote 10,at § 3.24. the separate property of the owner spouse are permitted in those
16 Id. states by TEX. CONST. ART. XVI, § 15; TEX. FAM. CODE § 4.103;
17 Id. IDAHOCODE§ 32-906(1); LA. CIV. CODEANN. ART. 2339; and WIS.
18 If the couple does not convert community property into STAT.§ 755.31.)
separate property,they should determine with their estate planner 20 Estate of Wyly v. Commissioner, 610 F.2d 1282 (5th Cir.
whether community property will be treated as such in the com- 1980) (holding that the non-owner spouse’s income interest does
mon law state to which they will be moving. For example,fourteen not rise to the level of a retained “right” under section 2036
common law states have adopted the Uniform Disposition of Com- because,under Texas law,the interest is a mere expectancy and is
munity Property Rights at Death Act and thereby recognize com- not a general community interest subject to joint management and
munity property upon the death of a spouse. Seetext accompany- control); Rev. Rul. 81-221,1981-2 C.B. 178. Given that the law in
ing nn. 89-95,infra. Case law in some of the other common law Idaho, Louisiana and Wisconsin is similar to Texas law in this
states generally provides that movable community property regard,a similar result should also be attainable in those states.
brought to a common law state will be treated as community prop-
35 ACTEC Journal 76 (2009)
es in common law states are using joint trusts with fact unless state law provides otherwise.26 If such
more frequency. In community property states, joint character has been retained, a basis step-up is recog-
revocable trusts are the norm and are drafted in a nized for the entire property at the death of a spouse.27
manner that will not destroy the character of commu- Where such character has been lost, there is no basis
nity property held in trust. Thus, if a married couple step-up for the entire property.28
lives in a common law state and each spouse has a
revocable trust, that couple should consider a joint Other planning
revocable trust upon migrating to a community prop-
erty jurisdiction. Planning for migrating couples is likely to include
Regarding married couples living in community more than basis step-up/step-down planning or revo-
property states, Rev. Rul. 68-28321 continues to set cable trust planning, but those areas of planning illus-
the standard for preparing joint revocable trusts. trate the importance of planning for migrating spous-
Based on that ruling, certain commentators advise es. If a married couple fails to plan when they migrate
that a joint revocable trust for a married couple living from a common law state to a community property
in a community property state should (i) usually state, or vice versa, or when they migrate between
grant the power to revoke to either spouse but require common law jurisdictions or community property
joint consent for amendments; (ii) provide that any jurisdictions, the law of the new state of domicile, at
community property transferred to it will retain its divorce or death, may not deal with property acquired
community status and that community assets with- in the former state of domicile in the manner contem-
drawn will be treated as community property; and plated by that couple. The balance of this article
(iii) deal with management rights to and upon the reviews how such property is characterized and divid-
withdrawal of assets when state law permits other ed at divorce or death.
than joint management.22
If a trust is not properly prepared for spouses in a Property Division at Divorce
community property jurisdiction, substantial issues
may arise as to whether the spouses have retained their Equitable Distribution History and Models
community property rights or have somehow trans-
muted property into the separate property of either Under early American law,married women had no
spouse.23 A case on point is Katz v. United States,24 distinct legal identity.29 The law viewed all property of
where a husband and wife transferred community the marriage as the sole property of the husband. The
property to a revocable trust created by the husband. merger of a married woman’s identity with the hus-
The wife consented to the original trust and a subse- band’s identity under such law prevented the develop-
quent trust amendment. Despite such consent, the ment of any law of property division upon divorce.30
United States Court of Appeals for the Ninth Circuit Married women’s property acts were enacted in all
held that such consent did not transmute such property American jurisdictions by the mid-nineteenth century,
into the separate property of the husband.25 which rejected the common law theory of merger and
Whether community property transferred to a trust gave married women the right to own property.31
changes its character for tax purposes is a question of Although women could lawfully hold title to property
21 Rev. Rul. 68-283,1966-2 C.B. 297. property before the trust was created (but the trust did expand the
22 Kasner & Golden,supran. 1,at C-59. husband’s ability during his life to give away community income
23 Id. from such property); and (iv) the management powers the husband
24 Katz v. United States,382 F.2d 723 (9th Cir. 1967). had over the trust property were held by him as agent for,or man-
25 A transmutation did not occur for the following reasons:(i) ager of,the community and therefore did not amount to a general
the rule that a change in the form of community property during power of appointment over the wife’s interest.
marriage does not change its community character applies unless 26 WESTFALL& MAIR,supran. 9,at § 4.06[3] n. 160.
the spouses convert such property, by agreement, into separate 27 Rev. Rul. 66-283,1966-2 C.B. 297.
property, and that rule applied here because there was nothing in 28 Murphy v. Commissioner, 342 F.2d 356 (9th Cir. 1965)
the trust or the consents stating that either spouse was transmuting (denying a basis step-up under section 1014(b)(6) of the Internal
community property into the husband’s separate property; (ii) the Revenue Code when such character had been lost by converting
rule that property acquired during marriage is community property such property into joint tenancy property,where each spouse held
applies to equitable interests in a trust, including the husband’s as separate property an undivided interest in such property).
interests; (iii) the trust did not change the husband’s management 29 TURNER,supran. 9,at § 1.3.
rights over the property transferred to the trust because he had full 30 Id.
authority under community property law to manage and control the 31 Id.
35 ACTEC Journal 77 (2009)
after the enactment of those acts, property division in that property division is a vested legal right and not a dis-
the early twentieth century in a divorce proceeding was cretionary equitable remedy. That right vests only when
based upon the title theory. Upon divorce,each spouse a divorce complaint is filed, in which event property is
received only those assets to which that spouse had divided equitably between the spouses.40 In other words,
legal title.32 There was no critical need for a property marital property rights in common law jurisdictions for
award upon divorce because permanent alimony was equitable distribution purposes are unvested prior to the
still being awarded where the husband was at fault.33 commencement of a divorce proceeding. The common
A notable exception to the title theory in the late law property system does not go as far as the community
nineteenth century was property division in the eight property system that treats community property as hav-
traditional community property states. In those juris- ing vested legal title interests during marriage.41
dictions,community propertywas traditionally divided The all-property model of equitable distribution
equally between spouses while separate property was exists in fifteen states, fourteen of which are common
traditionally divided based on legal title.34 Generally, law states and one of which is a traditional community
in community property states, separate property is property state.42 In those states,courts may divide any
property owned by a spouse prior to marriage and all asset owned by either spouse regardless of time or
property acquired after marriage by gift, inheritance, manner of acquisition. The precise division is left to
devise or bequest. All other property acquired during the court’s discretion, but there is an express list of
marriage by a husband or wife is their community factors that the court must consider. Several of those
property.35 Community property law was therefore the factors relate to spousal contributions to the marriage.
first dual classification system in the United States, The court, though, is required to consider property
where property was classified either as community division in every divorce case.43
property or as separate property.36 The dual classification model of equitable distribu-
The American law of divorce changed significant- tion exists in 27 common law states, the District of
ly in the 1960s and 1970s with the equitable distribu- Columbia,the other seven traditional community proper-
tion revolution. During that period, the title theory to ty states,and the State of Wisconsin that adopted the Uni-
property division came under attack due to women form Marital Property Act,for a total of 36 jurisdictions.44
acquiring property with greater frequency and to the Thus, a majority of equitable distribution jurisdictions
greater number of women making significant direct follow some form of dual classification system. Under
financial contributions to their marriages.37 The inade- the dual classification system, the court begins the prop-
quacy of permanent alimony and the growing econom- erty division process by classifying each spouse’s assets
ic equality of men and women significantly influenced as either maritalor separateproperty. Marital propertyis
the adoption of equitable distribution upon divorce.38 then divided equitably between the spouses, while sepa-
Today, equitable distribution of property upon rate propertyis divided according to legal title.45
divorce is applied in all fifty states and the District of Under most dual classification systems, marital
Columbia. Equitable distribution is based upon either property is property acquired by one or both spouses
the all-property model or the dual classification model, during the marriage that is not defined as separate
both of which are discussed below.39 The equitable dis- property.46 Based on that definition,there are four ele-
tribution system in common law jurisdictions recognizes ments to marital property:
32 Id. 37 TURNER,supran. 9,at §§ 1.3 to 1.5.
33 Id. 38 Id.
34 Id. “Since both spouses had equal interest in the marital 39 TURNER,supran. 9,at § 2.7.
community,the property was divided equally between them upon 40 TURNER,supran. 9,at § 2.7. Furthermore,if the marriage
death or divorce. … Upon divorce,only community property was ends in death rather than divorce,marital property rights in those
divided equally; separate property was divided according to legal systems never vest and distribution is made under the law applica-
title.” Id.at p. 7. However,some community property states now ble to the decedent’s estate. Id.
divided community property equitably. Seenn. 51 to 54,infra,and 41 Id.
the text accompanying those notes. In addition,separate property 42 TURNER,supran. 9,at § 2.8 n. 7. The community property
can be divided in the State of Washington. Seenn. 42 and 50,infra, state is Washington.
and the text accompanying those notes. 43 TURNER,supran. 9,at § 2.8.
35 This “negative”definition of community property provides 44 TURNER,supran. 9,at § 2.9 n. 3. The Wisconsin Uniform
the key to answering most questions regarding the characterization Marital Property Act is essentially a community property system.
of property. For example,marriage itself does not cause any previ- Seethe authorities listed in n. 9,supra.
ously owned property to become community property. PRICE, 45 TURNER,supran. 9,at § 2.9.
supran. 9,at § 3.28. 46 TURNER,supran. 9,at § 5.29.
36 Id.
35 ACTEC Journal 78 (2009)
1. Property; as a large majority of all recent
2. Acquired by one or both spouses; statutes reject all-property. More-
3. During the marriage; and over, there is a clear trend in states
4. Which is not separate property. with all-property systems to adopt
Each element has its own technical meaning under some of the benefits of dual classifi-
statutory or common law. The first three elements cation by court decision. A number
(“property acquired by one or both spouses during the of courts, for instance, have held that
marriage”) appear in a great majority of dual classifica- while separate property can be divid-
tion statutes in nearly the same form, but the last ele- ed, it should not be divided unless
ment (“which is not defined as separate property”) unusual circumstances are present.
varies considerably from state to state.47 According to These decisions adopt a form of dual
one commentator: classification,for the court is dividing
the parties’assets into different class-
“Some types of separate property, es which are governed by different
such as property acquired in exchange rules of division. Moreover,frequent-
for other separate property,are essen- ly the fact situations which justify
tially universal; other types, such as division of separate property in these
property acquired by gift or inheri- states are fact situations where the
tance, are majority rules with minori- asset would not be considered sepa-
ty exceptions; and still others,such as rate property under a statutory dual
income from separate property, are classification system. At both the leg-
the subject of an almost equal split in islative and judicial level, therefore,
authority among states.”48 there is a clear present trend toward
adoption of the dual classification
Consequently, there is no single commonly accepted model of equitable distribution.”50
definition of separate property in equitable distribution
jurisdictions.49 The concept of equitable distribution has carried
Despite the need to classify property under the over to community property states. Community proper-
dual classification system, states favor that system ty states have traditionally required an equal division of
over the all-property system for the following reasons: community property on both divorce and death
because, under the marital partnership theory, each
“The majority consensus to date spouse is treated as equally contributing to the commu-
seems to be that the consistency of nity by his or her industry.51 However,a growing major-
dual classification is worth the cost, ity of community property states have changed this rule
47 Id. § 5.29. The split in community property jurisdictions over the
48 Id. (citations omitted). The commentator divides separate treatment of income from separate property has spilled over into
property into two classes:primary separate property and secondary equitable distribution cases. Id. at § 5.50. Moreover, if income
separate property. The main types of primary separate property are from separate property is classified as marital property but appreci-
assets acquired before marriage (Id. at § 5.30) and assets acquired ation is not,it is important to distinguish between both. The funda-
by gift and inheritance (Id. at §§ 5.31 and 5.47). The commentator mental distinction between both is the manner in which the new
also confirms that “gifts are presently separate property in every value is received. If the new value is a new asset entirely distinct
dual classification equitable distribution jurisdiction,” while from the prior asset,the new value is income. Alternatively,if the
“inheritances are presently separate property in an overwhelming new value is not a new asset entirely distinct from the prior asset,
majority of equitable distribution jurisdictions.” Id. at §§ 5.31 and the new value is appreciation. Id. at § 5.50. The only difference
5.47. The commentator also notes that only two dual classification between the two is that income takes the form of a new asset,while
states—Iowa and Wisconsin—treat property acquired before mar- appreciation takes the form of added value to an existing asset. To
riage as marital property, but, even in those states, courts divide some,this is an illogical exercise in form over substance. Accord-
such property unequally due to its status,unless such is the product ingly,the trend among states is to treat both income and apprecia-
of joint contributions. Id. at § 5.30. The Wisconsin exception is tion the same. Id.
discussed in Appendix A regarding the division of property upon 49 TURNER,supran. 9,at § 5.29.
divorce in community property states. 50 TURNER,supran. 9,at § 2.10.
The main types of secondary separate property are income 51 TURNER,supran. 9,at § 2.5 (quoting DEFUNIAK,supran.
from separate property, appreciation on separate property, and 10,at chapters 2-3).
property acquired in exchange for other separate property. Id. at
35 ACTEC Journal 79 (2009)
to permit equitabledivision upon divorce,52but courts in “It is generally recognized that the
those states are still more likely to make an equal divi- character of community property,
sion than courts in equitable distribution states.53 even though it is personalty, does not
change as to the nature of the holding,
Classification and Division Generally where the married couple remove
themselves from a community-prop-
If divorce occurs in a community property juris- erty state to a common-law state. The
diction, community property is divided equally or converse is also true, that is, the char-
equitably between the spouses,while separate property acter of property acquired in a com-
is generally divided based on legal title.54 On the other mon-law state is not altered merely by
hand, if divorce occurs in a common law jurisdiction, the removal of the couple to a commu-
marital property is divided equitably between the nity-property state.”
spouses, while separate property is generally divided
based on legal title.55 Concerning the character or classification of real
If a married couple migrates from a common law property acquired during marriage or coverture,courts
state to a community property state,or vice versa,and held that the law of the situs of such property con-
subsequently divorce,a question arises as to how prop- trols.59 Instead of merely applying local law, courts of
erty acquired under one property system should be the situs usually hold that the land acquires the marital
treated under the other property system. Courts early property character of the funds or other assets used in
on had to decide whether the character or classification acquiring it. So if land is purchased in a common law
of property changed when a married couple moved state with community funds, the spouses should hold
between community property and common law states. the same interest in the land as they previously held in
They relied upon conflict-of-laws rules in determining the funds.60
the character or classification of property.
With respect to personal property acquired during Classification and Division in Community
marriage or coverture, courts held that the law of the Property States
marital domicile at the time the property was acquired
governs the character of such property and related As previously discussed, the character of personal
property rights.56 Moving from a common law state to property acquired in a common law state where a mar-
a community property state, or vice versa, does not ried couple was domiciled does not change when the
change the character or interests in that property.57 The couple moves to a community property state. However,
Supreme Court of Ohio summarized this rule in Estate when a divorce occurs,the question arises as to how such
of Kessler:58 property should be divided. Community property juris-
52 Id. Community property is divided equitably upon divorce Swarthout, ANNOTATION, CHANGE OF DOMICILE AS AFFECTING
in Arizona,Idaho,Nevada,Texas and Washington,while it is still CHARACTER OF PROPERTY PREVIOUSLY ACQUIRED AS SEPARATE OR
divided equally in California, Louisiana and New Mexico. Id. COMMUNITYPROPERTY,14 A.L.R. 3d 404 (2008). See alsoEstate
While community property in California must be divided equally of Crichton, 49 Misc. 2d 405, 408-09 and 412-13, 267 N.Y.S.2d
upon divorce,CAL. FAM. CODE§ 2550 (2008),the court does not 706 (1966) (providing that when spouses have separate domiciles,
have to divide each asset equally. Rather, an item of community conflict-of-law rules provide that the law of the state of domicile of
property can be awarded entirely to one party,but the other party the spouse who acquired the personal property controls as to the
must be compensated in some manner so as to effect a substantial ownership of the property).
equal division of the community property,CAL. FAM. CODE§ 2601 57 RESTATEMENT (SECOND) CONFLICT OF LAWS § 259 (1971).
(2008). In re Marriage of Tammen, 134 Cal. Rptr. 161, 162-63 However,marital property interests may be affected by subsequent
(Cal. App. 1st Dist. 1976) (interpreting law now renumbered as dealings with such property in the second state. Id.
CAL. FAM. CODE §§ 2601-28); In re Marriage of Cunningham, 58 Estate of Kessler,177 Ohio St. 136,138,203 N.E.2d 221
2008 Cal. App. Unpub. LEXIS 1868 (2008). (1964). For additional authorities regarding spouses migrating to a
53 Id. common law state from a community property state,seethe treatis-
54 See text accompanying n. 34, supra. Statutes in Arizona, es and case law cited in Rev. Rul. 72-443,1972-2 C.B. 531.
California, Idaho, Louisiana, Nevada New Mexico and Texas do 59 RESTATEMENT(SECOND) CONFLICTOFLAWS§ 234 (1971).
not grant authority to divest separate property upon divorce. Chap- 60 Id. at cmt. a. See Depas v. Mayo, 11 Mo. 314 (1848)
pell,supran. 3,at 999-1000 (and authorities cited there). (where a husband’s purchase of real estate in Missouri with com-
55 Seetext accompanying n. 45,supra. munity property acquired in Louisiana resulted in the husband
56 RESTATEMENT (SECOND) CONFLICT OF LAWS § 258 (1971); holding the wife’s community interest in trust for her benefit).
15A Am. Jur. 2d Community Property §§ 16-18 (2008); A.M.
35 ACTEC Journal 80 (2009)
dictions use either a conflict-of-laws approach or a statu- • A spouse’s separate property from a com-
tory approach to divide such property. mon law state will retain its character
when that property is moved to, or domi-
Conflict-of-Laws Approach. cile is changed to, a community property
state;65and
Community property states initially resolved
the division issue through conflict-of-laws rules. • The equitable distribution law of that com-
Courts there held that the law of the state in which a mon law state will be used in dividing the
married couple is domiciled at the time the property separate property.66
was acquired determines both the character and
division of separate property.61 In the words of the Dividing property using the equitable distri-
Supreme Court of Washington in In re Marriage bution law of a foreign state poses a significant
of Landry:62 administrative burden, which has been described as
follows:
“[T]he judicial decisions…have recog-
nized that just as the owner spouse’s “Under the traditional [conflict-of-
legal title survives the transfer of the laws] rule, however, the courts would
property into a community property be required to learn and apply the
state,under conflict of laws principles, equitable distribution law of other
the nonowner spouse’s equitable inter- states and even other countries. The
ests in an asset, as established under process would not be a simple matter
the law of the state of acquisition,also of applying one foreign jurisdiction’s
survive the transfer.”63 law to each case,but rather a complex
process of dividing each individual
Thus, under the conflict-of-laws approach in asset according to the law of its own
community property states: individual foreign jurisdiction. If the
parties moved frequently during the
• Property acquired by spouses while domi- marriage—for example, if one spouse
ciled in a common law state is separate was a military service member who
property because community property served multiple tours of duty in for-
does not exist there.64 eign countries—the court could find
61 Chappell, supra n. 3, at 1000-1003. The conflicts of law and legal relations provided in any and all of the laws
approached is used in Idaho,Nevada,New Mexico and Washing- of the State of Iowa that affect marital property.”
ton,which was adopted,respectively,by the following cases:Berle 64 “[C]ommunity property states have recognized the differ-
v. Berle, 97 Idaho 452, 546 P.2d 407 (1976); Braddock v. Brad- ence between property which is separate property as that term is
dock, 542 P.2d 1061, 1063 (Nev. 1975); Hughes v. Hughes, 573 used in a community property state and property which is separate
P.2d 1194,1198 (N.M. 1978); In reMarriage of Landry,103 Wash. property merely because community property does not exist in the
2d 807,811,699 P.2d 214 (1985). Arizona and California courts state in which the asset was acquired.” In reMarriage of Landry,
also laid the ground work for the conflict of laws approach, but 103 Wash. 2d 807, 811, 699 P.2d 214 (1985) (emphasis added).
both states now have statutory authority protecting the non-acquir- Accord, In re Miller, 31 Cal. 2d 191, 195, 187 P.2d 722 (1947)
ing spouse. Chappell,supran. 3,at 1000-1003. See,e.g.,Rau v. (“Prior to 1917 [when California enacted its quasi-community
Rau,6 Ariz. App. 362,365-66,432 P.2d 910 (1967). The statutory property statute], it had uniformly been held that where the hus-
authority enacted in Arizona and California is on Appendix A. See band acquired property during coverture in a common-law state
alsoRESTATEMENT(SECOND) CONFLICTOFLAWS§ 259 (1971). while domiciled there and then subsequently brought it to Califor-
62 In re Marriage of Landry, 103 Wash. 2d 807, 811, 699 nia at the time of establishing residence here,such marital property
P.2d 214 (1985) (citing cases decided in New Mexico,Idaho and remained the sole and separate property of the husband,irrespec-
Arizona). tive of the prevailing concept of community property in this state as
63 Similarly,the Supreme Court of New Mexico in Hughes v. including all property acquired by either spouse after marriage
Hughes,91 N.M. 339,573 P.2d 1194 (1974),held as follows: other than that acquired by gift,bequest,devise or decent.”); Addi-
“[W]e hold that the characterization of this property as son v. Addison,62 Cal. 2d 558,563,399 P.2d 897 (1965).
separate must be made under the applicable laws of 65 Seeauthorities listed at nn. 56,57 and 61,supra.
the State of Iowa and therefore the property is subject 66 Seeauthorities listed at n. 61,supra.
to all the wife’s incidents of ownership,claims,rights
35 ACTEC Journal 81 (2009)
itself applying the law of many differ- ciled in a community property state. An excerpt of
ent states and even countries in the each state’s quasi-community property statute is set
course of a single property division forth on Appendix A.
case. The administrative burden Community property states that have enacted
posed by this process can fairly be statutes listed on Appendix A are now able to classify
called daunting.”67 and divide all property under the law of the forum.
Classifying and dividing all property under the law of
Statutory Approach the forum is the majority practice within the United
States for the following reasons:
While some community property states have
decided to handle migrating spouse issues by applying • It eliminates the administrative burden
conflicts-of-law principles, other community property of classifying and dividing individual
states have decided to enact equitable distribution assets;70
statutes to expressly deal with that issue. Appendix A
to this article shows two categories of statutes enacted • Application of foreign law to individual
by certain community property jurisdictions for the assets could lead to unjust results because
purpose of equitably dividing property acquired by property division systems should not be
spouses in a common law state before migrating to a viewed in isolation and often have com-
community property state. plex trade-offs between property division
Under the column there entitled Equitable and other issues.71
Division Approach, two states have enacted statutes
that grant a court authority to divide all, or nearly all, • The adoption of quasi-community proper-
of the property acquired by the spouses. For instance, ty statutes in a majority of community
Washington, an all-property state, enacted a statute property states reveals that they concur
allowing the court to divide all community and sepa- with the assessment that classification and
rate property on a just and equitable basis. On the division of property under the law of the
other hand, Wisconsin, a dual classification state, forum is good policy.72
enacted a statute authorizing the court to divide equal-
ly all property acquired by the spouses before and after Classification and Division in Common Law
marriage except for three specific categories of sepa- States
rate property.68 If, however, a hardship on either party
or children of the marriage would result, then those Common law states have not followed the path of
categories of separate property will be divided in a fair community property states in enacting special statutes
and equitable manner.69 that deal with property acquired by divorcing spouses
The last column on Appendix A lists the com- while domiciled in a community property state. To the
munity property states that have enacted so-called contrary,case law in common law states has addressed
quasi-community property statutes. Quasi-community the issue.73 A majority of the cases in common law
property is generally defined as property acquired states classify and divide all property under the law of
while a married couple was domiciled in a common the forum,while a minority of the cases classify prop-
law state that would have been characterized as com- erty using foreign law but divide such property based
munity property if the married couple had been domi- on the law of the forum.74
67 TURNER,supran. 9,at § 3.13. 73 Id.
68 The three categories of property treated as separate proper- 74 Id. For cases holding that the law of the forum controls all
ty are (i) gifts from a non-party,(ii) property received by reason of equitable distribution issues,seeTURNER,supran. 9,at § 3.13 n. 7;
the death of a non-party, such as proceeds from life insurance, for more cases reaching the same result by applying the “most sig-
deferred employee benefit plans,or individual retirement accounts, nificant relationship”test of RESTATEMENT(SECOND) CONFLICTOF
and property received by right survivorship,by a trust distribution, LAWS§ 258 (1971),seeId.at § 3.13 n. 8; and for authorities refer-
by bequest or inheritance,or by a payable on death or a transfer or encing the “sheer number of cases, far too many for convenient
death arrangement,and (iii) funds acquired in a manner provided citation” that divide out-of-state property under the law of the
in clauses (i) or (ii). WIS. STAT. § 767.61(2)(a) (2008). forum without expressly discussing any choice of law issue,see Id.
69 WIS. STAT. § 767.61(2)(b) (2008). at § 3.13. For the minority of cases using the law of the forum only
70 Seetext accompanying n. 67,supra. for dividing assets upon divorce but not for classifying those assets,
71 TURNER,supran. 9,at § 3.13. see Id. at § 3.13 n. 8.
72 Id.
35 ACTEC Journal 82 (2009)
One factor facilitating the use of the law of the community property jurisdictions have traditionally
forum is the breadth of a state’s equitable distribution provided for a surviving spouse only by giving that
statute. For instance,in Zeolla v. Zeolla,75the Supreme spouse an equal share of the community property
Judicial Court of Maine reviewed a statute providing upon the death of the other spouse. Under communi-
that in a divorce proceeding “the court shall set apart to ty property law, property acquired by a deceased
each spouse the spouse’s property and shall divide the spouse in a common law jurisdiction while domiciled
marital property in proportions the court considers just there has traditionally been treated as the deceased
after considering all relevant factors….” That statute, spouse’s separate property. Consequently, the
according to the Supreme Judicial Court, authorized deceased spouse could traditionally dispose of that
the division of all property under Maine law, regard- property at will and thereby disinherit the surviving
less of its location. It imposed no restriction on dis- spouse. The surviving spouse in that event was left to
tributing out-of-state property,but directed the distrib- the generosity of the deceased spouse.
ution of each “spouse’s property” and the “marital Certain community property states have dealt
property.” By applying to all property including out- with this issue by adopting quasi-community proper-
of-state property, the statute sought to dispose of all ty statutes that apply at a spouse’s death. Appendix
issues related to the parties’property upon the entry of B describes the various types of quasi-community
a divorce decree. In refusing to apply Massachusetts property statutes enacted for this purpose. For
law to divide property located in that state, the reasons discussed below, only a quasi-community
Supreme Judicial Court stated: property statute applicable at death will protect the
interests of a surviving spouse with respect to the
“Preventing a court from using Maine separate property of the deceased spouse that was
law to distribute all the marital proper- acquired in another jurisdiction during marriage.78
ty would be anathema to the policy of Appendix B also lists those community property
granting the divorce court such large states that have not enacted any quasi-community
equitable powers. In our increasingly property statute for disposing of property at death but
transient society,a court could be lim- rely instead upon their conflict-of-laws rules that
ited by the property distribution laws foster potential disinheritance of the surviving
of every state a migratory marriage spouse with respect to the deceased spouse’s sepa-
touched. rate property from common law states.
“Both the plain language and the poli- Classification and Division in Community
cy behind … [the applicable statute] Property States
dictate that the court shall use the
broad discretion it is granted under Under previously discussed conflict-of-laws rules
that section to equitably divide all of in community property states, the law of the state
the marital and nonmarital property, where a married couple is domiciled at the time prop-
wherever that property is located.”76 erty is acquired determines the character of that prop-
erty.79 That character is retained when property is
Property Division at Death brought into a community property state.80 Those rules
also provide that the law of the state where a married
Generally couple is domiciled at the time property is acquired
also determines the division of that property upon
The same issue confronting migrating married divorce.81 However, with respect to the division of
couples regarding the division of property upon property at death, conflict-of-laws rules provide that
divorce also applies at death. Unlike common law the law of a married couple’s domicile will govern
states, which have statutory “sharing provisions” at instead.82 Thus, conflict-of-laws rules applicable at
death such as elective or forced share provisions,77 death have been summarized as follows:
75 Zeolla v. Zeolla,2006 Me. 118,908 A.2d 629 (2006). 80 Id.
76 Zeolla,908 A.2d 629 at 631. 81 See, supra nn. 61-63 and the text accompanying those
77 Seetext accompanying n. 6,supra. notes.
78 Chappell,supran. 3,at 1007. 82 RESTATEMENT(SECOND) CONFLICTOFLAWS§§ 260 and 263
79 See, supra nn. 61-65 and the text accompanying those (1971).
notes.
35 ACTEC Journal 83 (2009)