Ownership of Personal Property Accumulated During a Marriage
| Publication year | 1988 |
| Pages | 623 |
| Citation | Vol. 17 No. 4 Pg. 623 |
1988, April, Pg. 623. Ownership of Personal Property Accumulated During a Marriage
In Colorado, the husband is presumed to own personal property accumulated during the marriage, in the absence of independent evidence of ownership or a divorce. This rather surprising law derives from a combination of case law history and the lack of an easy, workable alternative. Three of the most common situations under which the presumption issue arises are bankruptcy, divorce and probate. This article discusses the presumption with respect to the probate process.
When there is no independent evidence of ownership of personal property accumulated by a husband and wife during a marriage and one of the spouses dies, an issue may arise regarding how such property is presumed to be owned. Although there are a number of circumstances where the presumption could foreseeably become a probate issue, two particular fact patterns provide the most likely scenarios. The first is when one spouse dies intestate and is survived by the other spouse and children from a previous marriage of the deceased spouse. This occurrence is becoming more common with the skyrocketing divorce rate over the last fifty years. Statistics show that in 1930, one out of every six marriages ended in divorce, whereas in 1979 that figure had jumped to approximately one out of two.(fn1)
The second typical circumstance under which the presumption issue may arise is when the testator leaves a will which bequeaths the personal property of the estate to persons other than his or her spouse. The determination under this fact pattern then becomes which personal property is part of the estate, and which belonged to the surviving spouse or was jointly owned with right of survivorship and never became a part of the estate.
Obviously, any time that a spouse survives the decedent, the distribution is going to be affected by the statutory provisions for spousal protection.(fn2) However, whenever there is a division of personal property of the decedent, the presumption becomes a potential issue. This is particularly true with the larger estates, in which the spousal and family protection statutes may have somewhat less impact and the stakes may be higher.
The earliest discussion of the presumption issue in Colorado can be found in the 1871 case of Allen v. Eldridge.(fn3) In Allen, a married woman sought compensation for her labor and for articles of food which she had provided her employer in her capacity as housekeeper. There was no evidence as to ownership of the food supplies which the housekeeper had provided, except that these items were in the possession of the housekeeper and her husband prior to being supplied to her employer. The Allen court allowed the woman compensation for the work she performed, but denied it for the items of personal property because her husband was not a party to the action. The court stated: "In the absence of evidence to show the separate ownership of the wife, the law will presume that they were owned by the husband. . . ."(fn4)
Subsequent to Allen, the Colorado legislature passed an act concerning the rights of married women ("Married Women's Act").(fn5) This statute sought to remove the marital "disabilities" and to give women the right to sue and be sued and own real and personal property separately from their husbands. As a result of this statute, the Colorado Supreme Court abolished the concept of ownership by tenancy in the entireties, which was based on the legal concept that the man and woman became one entity after the marriage.(fn6) It would be reasonable to assume that the Married Women's Act would also affect the "husband's ownership" presumption, because that common law presumption arose from the marriage entity concept.(fn7)
However, in Rachofsky & Co. v. Benson,(fn8) the Colorado Court of Appeals explained and harmonized the Allen presumption with the Married Women's Act. In Rachofsky, a sheriff levied upon personal property (goods and chattels)...
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