Chapter 4 - § 4.2 • MARRIED PERSONS

• Jurisdiction: Colorado

§ 4.2 • MARRIED PERSONS

During marriage, and absent any divorce action, each spouse has his or her separate property and, possibly subject to an exception or two, can dispose of it as he or she desires.⁶ Nevertheless, the value of certain property disposed of during marriage, including property disposed of within the two-year period immediately preceding the decedent's death, is included in the decedent's augmented estate for the purpose of determining the elective share of a surviving spouse.⁷

§ 4.2.1—Historical Background

At common law, the husband and wife were one person; and because for every contract there must be two parties, it followed that they could not enter into a contract with each other. All items of personal estate (money, goods, cattle, household furniture, etc.) that were the property and in possession of the wife at the time of the marriage were vested in the husband. He could dispose of any of these in his lifetime, without her consent, or might by will devise them, and they would, without any such disposition, go to the executors or administrators of the husband and not to the wife, even if she survived him. Debts due to the wife were so far vested in the husband that he might, by suit, reduce them to possession. The rents and profits of her land during coverture belonged to the husband. The law wrested from the wife both her personal estate and the profits of her realty, however much it might be against her will, and made her liable for her husband's debts. An improvident husband had it in his power to impoverish the wife by dissipating her personal estate, and the profits of her realty over which she, under the law (by reason of coverture), had no control.⁸

§ 4.2.2—Conveyance of Property of Married Women

By the ancient common law, the method of conveying a married woman's property was for her to unite with her husband in levying a fine. This was a formal proceeding in court, an essential part of which was that the presiding judge or judges examined and advised the wife privately concerning her rights, with the view to protect her against the undue influence of her husband, as well as to make sure that she did not make a disadvantageous disposition of her estate. If the proposed conveyance was approved, the whole proceeding was made a matter of record, and thus record proof of the conveyance of the wife's estate was preserved and parol proof excluded.⁹

The requirement that a married woman, in order to convey her real estate, must execute and acknowledge her deed before an officer (by whom she was to be first examined and informed of the meaning and effect of the deed separate and apart from her husband),¹⁰ preserved the essentials of the common-law method. The certificate of the officer making the examination and taking the acknowledgment corresponded to the record proof made by the levying of a fine. Hence, under such statutes, the decisions have been uniform that a married woman's deed could not be proved in the first instance by parol, but only by the certificate of the officer.¹¹

By the Territorial Act "To Protect the Rights of...