Comparison of State Law Differences in Community Property States

Arizona

California

Idaho

Louisiana

Nevada

New Mexico

Texas

Washington

Wisconsin*

1. When do spouses become subject to state community property laws?

When the spouses are married and domicile in the state.

When the spouses are married and domicile in the state.

When the spouses are married and domicile in the state.

When the spouses are married and domicile in the state.

When the spouses are married and domicile in the state.

When the spouses are married and domicile in the state.

When the spouses are married and domicile in the state.

When the spouses are married and domicile in the state.

On the determination date, which is the first day after marriage, both spouses domicile in Wisconsin and January 1, 1986 (the effective date of the Marital Property Act in Wisconsin).

2. Does the state recognize common law marriage?

No, but it recognizes a common law marriage legally established elsewhere.

No, but it recognizes a common law marriage legally established elsewhere.

No, but it did until 1/1/96. It recognizes common law marriages established in Idaho before 1/1/96 or legally established elsewhere.

No, but it recognizes a common law marriage legally established elsewhere.

No, but it recognizes a common law marriage legally established elsewhere.

No, but it recognizes a common law marriage legally established elsewhere.

Yes. To qualify, spouses must cohabit in Texas, agree to be married and represent that they are married. Parties to a common law marriage must obtain a divorce or annulment to terminate the marriage.

No, but it recognizes a common law marriage legally established elsewhere.

No, but it recognizes a common law marriage legally established elsewhere.

3. Does the state recognize some from of domestic partnership as an alternative to marriage?

No.

Yes.

No.

No.

Yes.

No.

No.

Yes.

Yes.

4. Does a domestic partnership under state law create community property rights and obligations?

Not applicable.

Yes.

Not applicable.

Not applicable.

Yes.

Not applicable.

Not applicable.

Yes.

No.

5. When does the community property regime terminate (causing subsequently acquired assets or future income to no longer be characterized as community property)?

Change of domicile, death, decree of divorce or decree of legal separation. Also, property acquired after a petition for dissolution or separation or annulment is separate property, if the petition results in a final decree.

Change of domicile, death of spouse, living separate and apart before dissolution with no present intent to resume marital relations and conduct evidencing a complete and final break in the marital relationship, legal separation or judgment of dissolution.

Change of domicile, death or decree of divorce.

Change of domicile, death or entry of a judgment of separation of property or judgment of divorce.

Change of domicile, death, decree of divorce or decree of legal separation.

Change of domicile, death, decree of divorce or decree of legal separation. Upon separation, spouses may also ask court for division of property, which may affect subsequently acquired property.

Change of domicile, death, decree of divorce or annulment.

Change of domicile, death or a separation that is intended to be permanent.

Change of domicile, death, decree of divorce or decree of legal separation or decree of separate maintenance.

6. How is post marital income generated from separate property (e.g., rents, dividends, interest) characterized?

Separate property unless a portion is derived from CP time, effort and skills. If so, an allocation must be made.

Separate property unless a portion is derived from CP time effort and skills. If so, an allocation must be made.

Community property.

Community property.

Separate property unless derived from a spouse's labor or community property funds. If so, an allocation must be made.

Separate property unless derived from a spouse's labor or community property funds. If so, an allocation must be made.

Community property.

Separate property unless derived from a spouse's labor or community property funds. If so, an allocation must be made.

Marital (community) property.

7. How does the state characterize appreciation in the value of separate property?

Separate property. If a spouse's labor or community property funds are used to acquire or improve the asset, a right to reimbursement exists, but this does not change the character of the asset.

Separate property where appreciation is a "natural enhancement of SP" and spouse has expended a minimum of effort or effort has insignificant value. If spouse's labor or CP funds are used to acquire or improve the SP, a right of reimbursement exists, but does not change the character of the SP. A federal tax lien attaches to the right of reimbursement.

Separate property unless a portion is derived from community property. If so, an allocation must be made. A federal tax lien attaches to the right to reimbursement.

Separate property. If a spouse's labor or community property funds are used to acquire or improve the asset, a right to reimbursement exists, but this does not change the character of the asset.

Separate property unless derived from a spouse's labor or community property funds. If so, allocation or reimbursement issues must be dealt with. A federal tax lien attaches to the right to reimbursement.

Separate property. If a spouse's labor or community property funds are used to acquire or improve the asset, a right to reimbursement exists, but this does not change the character of the asset.

Separate property. If community property funds are used to acquire or improve the asset, when the marriage is terminated by death or divorce, a claim for economic contributions exists.

Separate property unless derived from a spouse's labor or community property funds. If so, allocation or reimbursement issues must be dealt with.

Market appreciation is individual (separate) property. Appreciation due to the efforts of either spouse or application of marital (community) property is marital (community) property.

8. How does the state characterize property taken by spouses under a deed reflecting that the property is held in joint tenancy?

Strong presumption that it is community property. To be a joint tenancy, deed should have language negating the possibility that it is held as community property.

The property is rebuttably presumed to be a joint tenancy. Factors rebutting the resumption include: If acquired during marriage, if acquired with CP funds, if parties knew the legal consequences of JT vs. CP, if loan proceeds deposited into CP account.

Community property unless there is clear and convincing evidence that the spouses intended to hold the property in joint tenancy rather than as community property. . Holding title in joint tenancy is not sufficient by itself to overcome CP presumption.

Community property.

The property is rebuttably presumed to be a joint tenancy.

Community property unless the deed also specifically designates it as separate property.

Depends on source of funds used to acquire property. Community property remains CP unless a written agreement to partition is first executed. Otherwise property is CP with a right of survivorship. Property purchased with separate funds may be held as joint tenants, with undivided 1/2 interest being separate property.

Community property unless there is a written agreement between the spouses which clearly evidences the spouses' intent to hold the property in joint tenancy rather than as CP. Holding title in joint tenancy is not sufficient by itself to overcome CP presumption.

Marital (community) property with right of survivorship, which in Wisconsin is called survivorship marital property, unless the deed was executed before 1/1/86. If the deed predates 1/1/86 it is a joint tenancy.

9. How does the state characterize property taken by spouses under a deed reflecting that the property is held in tenancy in common?

Strong presumption that it is community property. To be a tenancy in common, deed should have language negating the possibility that it is held as community property. Rare form of ownership between spouses.

The property is rebuttably presumed to be separate property. Very uncommon form of ownership between spouses.

As a tenancy in common, if deed uses specific language "as tenants in common." It may also create a tenancy in common if separate property of both spouses is used to acquire the property. Otherwise it is community property.

Community property.

The property is presumed to be community property.

Community property unless the deed also specifically designates it as separate property.

Community property, unless a written agreement to partition is executed. Property purchased with separate and community funds is owned as tenants in common.

Community property unless there is clear and convincing evidence establishing the spouses' intent to hold the property in tenancy in common. Title in tenancy in common is not sufficient by itself to overcome CP presumption.

Marital (community) property unless the deed was executed before 1/1/86. If the deed predates 1/1/86, it is a tenancy in common.

10. Does a deed taken in the name of one spouse as sole and separate property create separate property?

No. Title does not determine the character of the property. It is rebuttably presumed to be community property.

No. Title does not determine the character of the property. It is rebuttably presumed to be community property.

No. Title does not determine the character of the property. It is rebuttably presumed to be community property.

No. Title does not determine the character of the property. It is rebuttably presumed to be community property.

No. Title does not determine the character of the property. It is rebuttably presumed to be community property.

Yes. The property is rebuttably presumed to be separate property.

Only if the deed also contains a recital that the consideration was paid from separate funds of that spouse. If so, the property is then presumed to be separate.

No. Title does not determine the character of the property. It is rebuttably presumed to be community property.

No. Title does not determine the character of the property. It is rebuttably presumed to be community property.

1. Does the state recognize pre or post marital property characterization agreements?

Yes.

Yes.

Yes.

Yes.

Yes.

Yes.

Yes.

Yes.

Yes.

12. What are the property characterization agreements called?

Premarital, post marital, prenuptial or postnuptial agreements,

Premarital, post-marital, prenuptial or postnuptial agreements.

Premarital agreements and marriage settlement agreements.

Matrimonial agreements. (but, post marital agreements require court approval).

Premarital or ante nuptial agreements or post marital contracts.

Premarital, post marital, prenuptial or postnuptial agreements,

Premarital and marital or post nuptial agreements.

Separate property agreements.

Marital property agreements.

13. Are property characterizations agreements required to be in writing?

Premarital agreements must be in writing.

Premarital agreements must be in writing. Postmarital agreements need only be in writing if they involve real estate.

Agreements must be in writing.

Agreements must be in writing.

Agreements must be in writing to be effective against the Internal Revenue Service.

An oral agreement will be recognized, but the claim of one will be strictly scrutinized.

Agreements must be in writing.

An oral agreement will be recognized, but the claim of one will be strictly scrutinized.

Marital property agreements must be in writing.

14. Are property characterization agreements valid against creditors?

Yes, but fraudulent conveyance statutes can be applied.

Yes. Premarital contracts before 1986 required to be recorded. After 1986, no need for recording to be valid. Premarital not subject to fraudulent conveyance laws. Post-marital need not be recorded, but are subject to fraudulent conveyance laws.

Yes, no notice is required.

Yes, but only if the agreement is recorded (As to real property, with parish registry where real property is located, and as to personal property, with parish registry where spouses domicile).

Yes, but case by case analysis required. Agreement must conform to required state law formalities, and terms of agreement must be mutually observed by parties. Fraudulent conveyance and nominee/alter ego laws can be applied.

Unknown. State law requires agreements to be in writing and be acknowledged. There is no case law on the effect of a valid agreement on creditors.

Yes, unless existing creditor's rights are intended to be defrauded by agreement.

Not against existing creditors.

If incurred after the determination date, no, unless creditor has actual notice of the agreement before the obligation is incurred. If incurred before the determination date, yes as to future income or property.

15. What property is available to satisfy a premarital federal tax obligation assessed against only one spouse?

All separate property of liable spouse. Also, 100% of community property traceable to or contributed by the liable spouse and 50% of all other community property.

100% of all community property and all separate property of the liable spouse.

100% of all community property and all separate property of liable spouse.

100% of all community property and all separate property of liable spouse.

50% of community property and all separate property of liable spouse.

50% of all community property and all separate property of liable spouse.

All separate property of liable spouse, 100% of joint management community property, 100% of liable spouse's sole management community property, and 50% of nonliable spouse's sole management community property. If a homestead is involved, contact counsel.

50% of community property and all separate property of liable spouse.

All individual (separate) property of the debtor spouse, 2. Half of marital (community) property and 3. all marital (community) property that would have been debtor spouse's individual (separate) property but for marital property law or the marriage.

16. What property is available to satisfy a post marital federal tax obligation assessed against only one spouse?

100% of all community property and all separate property of the liable spouse.

100% of all community property and all separate property of the liable spouse.

100% of all community property and all separate property of liable spouse.

100% of all community property and all separate property of liable spouse.

100% of all community property and all separate property of liable spouse

100% of community property and all separate property of liable spouse,

All separate property of liable spouse, 100% of joint management community property, 100% of liable spouse's sole management community property, and 50% of nonliable spouse's sole management community property. If a homestead is involved, contact counsel.

100% of community property and all separate property of liable spouse.

Assuming the obligation is incurred in the interest of the marriage and family, 100% of marital (community) property and all separate property of liable spouse.

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