property law


Marital owners


English common law, after some hesitancy, adopted a regime of separate marital property. The wife had her property, the husband his. The only things that they owned together were things that had been conveyed to them together in a form of tenancy known as tenancy by the entirety (which still exists in a number of American jurisdictions). Tenancy by entirety is like joint tenancy in that the surviving spouse takes the whole of the property upon the death of the other spouse. It differs from joint tenancy in that it is not possible for one of the spouses to convey his or her interest so as to defeat the survivorship right of the other. (See marriage law.)

At common law, each spouse's separate property in land was subject to an expectancy in the other spouse. If the husband survived the wife and if a living child had been born to the marriage, the husband was entitled to curtesy, a life estate in all the lands of which his wife was seised during the marriage. If the wife survived the husband, she was entitled to dower, a life estate in one-third of all the land of which her husband was seised during the marriage.

The 19th-century Married Women's Property Acts had little effect on this basic system. The acts removed the husband's power to control his wife's property during the marriage, and they made it clear that the wife had the capacity to own personal property separate from her husband, but the basic scheme of separate property, curtesy, and dower remained. (See Married Women's Property Acts.)

What changed the system was the great increase in the amount of wealth held in personal property. Such property was the subject of neither dower nor curtesy. In the United States, although not in England, most jurisdictions provided for a forced share for widows. Under the forced-share system, the widow could waive her dower and any interest that she stood to take under her husband's will and take instead a share (normally a third or a half) of her husband's net estate.

The movement for equality for women in the latter half of the 20th century wrought another change in this system. Today, most American jurisdictions provide for a forced spousal share rather than simply a widow's share. Interests denominated dower and curtesy still exist in some jurisdictions, but they have been made sex-equal.

In the civil-law jurisdictions and in eight states of the United States, a different system of marital property prevails. As in the common-law system, husband and wife each have their separate property, but this is only the property they had prior to the marriage or property they received by gift or inheritance during the marriage. All property that is the result of earnings of either spouse during the marriage is community property, as are, in some of the civil-law jurisdictions, all movables. Separate property descends to the heirs of the spouse who holds the property, but community property is generally divided in half upon the death of the first spouse to die. Half of it goes to the surviving spouse and half of it to the heirs of the first-dying spouse. Other community-property jurisdictions give the first-dying spouse's portion of the community to the surviving spouse, at least in the absence of a testamentary disposition to the contrary.

Both the common-law and the community-property systems arose at a time when divorce was not as common as it is today. In common-law property jurisdictions the tendency now is to allow the judge wide discretion to divide the property of a divorcing couple without regard to who holds title to what. In community-property jurisdictions the tendency is to divide the community and to leave the separate property with the spouse who has title to it.

The importance of marital property for the concept of property in the West cannot be overestimated. Although spouses have some power to change their marital property arrangements by private agreement, most married people in the West today live under a regime either of community property or of separate property subject to division upon divorce and to a forced share in the surviving spouse. One might well question to what extent any Westerner who is married can be said to have individual property when his or her spouse has so much of a stake in it.

Newspaper Matthew Shepard Fatherhood
NY Times 86 46
LA Times 48 54
Orange County Register 11 17
Washington Post 42 46