Be sure you know what property is yours to leave or give away.
Married couples usually own lots, if not all, of their valuable property together. If you want to leave everything to your spouse, as many people do, you don't need to worry about what belongs to you and what belongs to your spouse. But if you want to divide your property among several beneficiaries, you need to know just what's yours to leave.
Most states, except the ones listed below under community property states, use the "common law" system of property ownership. In these states, it's usually easy to tell which spouse owns what. If only your name is on the deed, registration document, or other title paper, it's yours. You are free to leave your property to whomever you choose, subject to your spouse's right to claim a certain share after your death. (For more information, see Disinheriting Family Members.)
If you and your spouse both have your name on the title, you each own a half-interest in the property. Your freedom to give away or leave that half-interest depends on how you and your spouse share ownership. If you own the property in "joint tenancy with right of survivorship" or "tenancy by the entirety," the property automatically belongs to the surviving spouse when one spouse dies -- no matter what the deceased spouse's will says. But if you instead own the property in "tenancy in common" (less likely), then you can leave your half-interest to someone other than your spouse if you wish.
If an item doesn't have a title document, generally you own it if you paid for it or received it as a gift.
If you live in a community property state, the rules are more complicated. Community property states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. (And in Alaska, spouses can sign an agreement making specific assets community property.)
Generally, in community property states, money earned by either spouse during marriage, and all property bought with those earnings, are considered community property that is owned equally by husband and wife. Likewise, debts incurred during marriage are generally debts of the couple. At the death of one spouse, his half of the community property goes to the surviving spouse unless he left a will that directs otherwise.
Married people can still own separate property. For example, property inherited by just one spouse belongs to that spouse alone. A spouse can leave separate property to anyone; it doesn't have to go to the surviving spouse.
Married couples don't have to accept the rules about what is community property and what isn't. They can sign a written agreement that makes some or all community property the separate property of one spouse, or vice versa.
|Community Property||Separate Property|
|Money either spouse earns during marriage||Property owned by one spouse before marriage|
|Things bought with money either spouse earns during marriage||Property given to just one spouse|
|Separate property that has become so mixed with community property that it can't be identified||Property inherited by just one spouse|
These rules apply no matter whose name is on the title document to a particular piece of property. For example, a married woman in a community property state may own a car in only her name -- but legally, her husband may own a half-interest. Here are some other examples:
|A computer your spouse inherited during marriage||Your spouse's separate property||Property inherited by one spouse alone is separate property|
|A car you owned before marriage||Your separate property||Property owned by one spouse before marriage is separate property|
|A boat, owned and registered in your name, which you bought during your marriage with your income||Community property||It was bought with community property income (income earned during the marriage)|
|A family home, which the deed states that you and your wife own as "husband and wife" and which was bought with your earnings||Community property||It was bought with community property income (income earned during the marriage) and is owned as "husband and wife"|
|A camera you received as a gift||Your separate property||Gifts made to one spouse are that spouse's separate property|
|A checking account owned by you and your spouse, into which you put a $5,000 inheritance 20 years ago||Community property||The $5,000 (which was your separate property) has become so mixed with community property funds that it has become community property|
Several community property states offer an advantageous way of holding title to community property that avoids probate at the death of the first spouse. It's called "community property with right of survivorship." If a couple holds title to property -- a house, for example -- that way, when one spouse dies the house will automatically belong to the survivor, without any probate court proceedings.
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