Owning Property in Marriage

• Author: Alan R. Romero
• Profession: Professor of law and Director of the Rural Law Center at the University of Wyoming College of Law
• Pages: 181-189

Chapter 11

Owning Property in Marriage

In This Chapter

▶ Providing for surviving spouses

▶ Considering community property systems

▶ Examining homestead protections

▶ Exploring property distribution in divorce actions

S

pouses have a special and unique interest in shaping their mutual rights

in property. They can co-own property in any of the concurrent estates

I describe in Chapter 10. Specifically, they can choose to own as tenants in

common if they want to control property jointly during their lives but want

their respective shares to be separately transferable and inheritable. They

can elect to own a property as joint tenants if they want the surviving spouse

to solely own the property. Or they can choose to own as tenants by the

entirety if they want a right of survivorship that can’t be taken away by each

other or by creditors.

Spouses also can and do use the estates I describe in Chapter 9 to plan

their rights in property in the future. For example, a wife’s will may give her

husband a life estate in her property and then give the remainder to her kids.

And maybe if she doesn’t want him to remarry, she’ll give him the property

subject to a condition of defeasibility that he not remarry. Or she may be

unhappy with her spouse and not give him anything at all.

The traditional common law recognized that sometimes people didn’t

provide for their spouses at death. So over time, the law has taken different

approaches to ensuring that spouses are treated fairly. This chapter talks

about such rules that are relevant in the states today.

Of course, a marriage may end before the spouses’ lives end. The parties can

agree in advance about how they’ll own property during their marriage

and how it will be distributed upon divorce. But the law also regulates the

distribution of property when parties divorce. This chapter examines these

legal issues as well.