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The majority of the states which constitute the United States of America have adopted some form of English Common Law. A few, on the other hand, have adopted their property laws from Spanish law and have, therefore, instituted some form of "community property". Holding that a husband and wife form a special "community", these laws assign a special form of ownership to some specific property ... and they call it "community property". This special property designation is neither "his" nor "hers", it is "theirs". In the broadest sense of the word, husband and wife have their own identities ... and then they have a "joint identity", that of community property owners. As the states entered the Union, many specific states took some of their laws from the English and some from the Spanish. With respect to community property, each of the "community property" states has adopted its own specific definition. Consequently, the term "community property" does not mean exactly the same thing in each of the nine states that have some form of community property laws. Indeed, the courts continue, to this day, to refine the concept. The states which have some form of community property law are: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. Just because a state is known as a community property state, however, does not meant that all property owned by married people in that state is deemed to be community property. It is possible for some to be owned by him, some to be owned by her, some to be owned jointly and some to be owned in community. Generally, the rule in community property states is that all property owned by married people is community property with the exception of: 1. Property owned separately prior of marriage. Proceeds of life insurance policies and proceeds from casualty litigation, where the check is issued to one spouse, is also, generally, not deemed to be community property. Even when a deed states that property is held in joint tenancy with right of survivorship, the courts have held, in some instances, that it was community property. So, it is difficult for the layman to know precisely how the laws of any particular "community property" state treat each specific instance. Logic easily follows then, that it is impossible for a husband, for example, to purchase property in his sole name and, by this act alone, to keep the property from being deemed "community property". The deed, then, in and of itself, does not, necessarily, describe the exact nature of property in community property states. To add to the layman's difficulty in understanding this subject, one state, California, has recognized some property as being quasi-community property. Therefore, anyone holding any property in any of the above listed states, should be conversant with community property laws. And, it is axiomatic that no one, in either community property or common law states, should make major financial and estate-planning decisions without the counsel of an attorney who understands both the laws of the client's residential state and the laws of the state where the property is held. With this brief discussion of community property as a backdrop, it is accurate to say that the vast majority of estate planning decisions are made in similar ways in both the common-law states and in the community-property states. Implementing those decisions by drafting accurate documents does, of course, require the mastery of expert legal counsel who is cognizant of the laws of the relevant jurisdictions. |
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