Community Property v. The Elective Share

• Author: Terry L. Turnipseed
• Position: Associate Professor of Law and Associate Professor of Engineering and Computer Sciences (by courtesy appointment), Syracuse University. The author received a J.D. and an L.L.M. in Taxation at the Georgetown University Law Center, two Master of Science degrees at the Massachusetts Institute of Technology, and a Bachelor of Science degree at ...
• Pages: 161-186

Community Property v. The Elective Share

Terry L. Turnipseed*

I. INTRODUCTION

There is certainly no doubt that community property has its

faults. But, as with any flawed thing, one must look at it in

comparison with the alternatives: separate property and its

companion, the elective share. This Article argues that the elective

share is so flawed that it should be jettisoned in favor of

community property.1

The elective share can trace its ancestry to dower and curtesy,

with the concept of dower dating to ancient times.2 In old England,

a widowed woman was given a life estate in one-third of certain of

her husband’s real property—property in which the husband held

an inheritable or devisable interest during the marriage.3 Once

dower attached to a parcel of land at the inception of the marriage,

the husband could not unilaterally terminate it by transferring the

land.4 The right would spring to life upon the husband’s death

unless the wife had also consented to the transfer by signing the

deed, even if title were held in only the husband’s name.5

Copyright 2011, by TERRY L. TURNIPSEED.

* Associate Professor of Law and Associate Professor of Engineering and

Computer Sciences (by courtesy appointment), Syracuse University. The author

received a J.D. and an L.L.M. in Taxation at the Georgetown University Law

Center, two Master of Science degrees at the Massachusetts Institute of

Technology, and a Bachelor of Science degree at Mississippi State University.

1. A separate property jurisdiction does not follow the rules of a

community property state that “recognizes the mutuality of marital

relationships.” ROGE R W. ANDERSEN & IRA MARK BLOOM, FUNDAMENTALS OF

TRUSTS AND ESTATES 246 (2d. ed. 2002). Community property is property held

jointly between husband and wife, including: “property acquired through the

efforts of either spouse during the marriage and while domiciled in a community

property jurisdiction . . . and income or proceeds from the sale of community

property.” Id. “Separate property in a community property state [is] property

that a spouse owned before marriage or acquired during marriage by inheritance

or by gift from a third party . . . .” BLACK’S LAW DICTIONARY 1369 (7th ed.

2001). Husband and wife each hold one-half ownership in the community

property and 100% ownership in their separate property. ANDERSEN & BLOOM,

supra, at 246. “At death, both spouses usually have the power to dispose of their

own separate property and half of the community property.” Id.

2. J ESSE DUKEMINIER ET AL., WILLS, TRUSTS, AND ESTATES 423 (7th ed.

2005).

3. I d. at 422–23.

4. Id. at 423.

5. Id.

162 LOUISIANA LAW REVIEW [Vol. 72

Curtesy provided a surviving husband with a life estate in all

the wife’s qualifying real property, but only if children were born

to the couple.6 The type of real property that was subject to curtesy

was the same as with dower, as were the rules that related to when

the right attached and when it could be terminated.7

Virtually all United States jurisdictions have abolished dower

and curtesy in favor of the elective share.8 Georgia is the only state

which does not have a statutory elective share or community

property concepts.9 In modern America, then, 49 of the 50 states

and the District of Columbia limit freedom of testation vis-à-vis

surviving spouses.10

More than in any other area of wills and trusts, state laws differ

over the exact details of their respective elective share doctrines.

For example, state law varies widely in the amount to which the

surviving spouse is entitled, the variables that determine the

amount (length of marriage, family situation, surviving spouse’s

net worth, etc.), and the property that is subject to the elective

share.11 Typically, the surviving spouse is allowed to elect one-

third of the decedent–spouse’s property if the decedent had

surviving issue or one-half if there are no surviving issue.12

In some states, a testator can easily avoid subjecting her assets

to the elective share upon death simply by placing assets into one

or more types of trusts.13 Other more sophisticated elective share

statutes bring back most inter vivos transfers into the pool of assets

from which the elective share is taken, including those inter vivos

transfers made to trusts.

All elective share statutes, however, can be defeated by

transferring assets to an offshore asset protection trust.14 Once the

transferor–decedent has died, it is, in reality, impossible for a

6. Id.

7. I d.

8. Though the “forms of action we have buried . . . still rule us from their

graves.” Emerson G. Spies, Property Rights of the Surviving Spouse, 46 VA. L.

REV. 157, 158 n.8 (1960) (quoting F.W. MAITLAND, THE FORMS OF ACTION AT

COMMON LAW 2 (A.H. Chaytor & W.J. Whittaker eds., 1936) (1909)).

9. Jeffrey N. Pennell, Minimizing the Surviving Spouse’s Elective Share,

32 U. MIAMI L. CENTER EST. PLAN. § 904 (1998).

10. See generally MARY ANN GLENDON, THE TRANSFORMATION OF FAM ILY

LAW 245 (1989).

11. See g enerally discussion infra Part III.

12. See g enerally discussion infra Part III.

13. See d iscussion infra Part IV.B.1.a.

14. See d iscussion infra Part IV.B.2.