COMPARISON OF THE PROPERTY ASPECTS
OF THE COMMUNITY PROPERTY AND
COMMON-LAW MARITAL PROPERTY
SYSTEMS AND THEIR RELATIVE
COMPATIBILITY WITH THE CURRENT VIEW
OF THE MARRIAGE RELATIONSHIP AND
THE RIGHTS OF WOMEN
ScoTr
GREENE*
INTRODUCTION
The community property system, in one form or another, currently prevails in eight states' with the remaining forty-two states
and the District of Columbia following the marital property system
that exists under the common law. 2 These two marital property
systems are different both with respect to their practical effects in
governing marital property rights and their underlying philosophical approaches to the marital relationship. These differences will
be explored by comparing the basic property characteristics of the
two marital property systems in differing situations. 3 Such a com* Associate Professor of Law, Creighton University School of Law. B.S., Indiana University, 1968; J.D., University of Texas, 1971; LL.M., Harvard Law School,
1979.
1. Those states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, and Washington. The inhabitants of these states currently comprise
over twenty-two percent of the total population of the United States. BUREAU OF
THE CENSUS, U.S. DEPARTMENT OF COMMERCE, STATISTICAL ABSTRACT OF THE UNITED
STATES 1977, Table 10 at p. 11. For a list of all jurisdictions which have adopted
some form of the community property system, see Lobingier, The Marital Community: Its Origins and Diffusion, 14 Am. B.A.J. 211, 218 nn.130 & 131 (1928).
2. Previously, several of the current common-law property states temporarily
adopted the community property system for the tax advantages which community
property states had prior to the Revenue Act of 1948. See ch. 273, 1945 Hawaii Sess.
Laws '(repealed 1949); Act 317, 1947 Mich. Pub. Act (repealed 1948); L.B. 410, 1947
Neb. Laws 426 (repealed 1949); §§ 1-15, 1939 Okla. Sess. Laws at 356-60 (repealed
1945); §§ 1-15, 17-18, 1945 Okla. Sess. Laws (repealed 1949); ch. 440, 1943 Or. Laws
(repealed 1945); ch. 525, 1947 Or. Laws (repealed 1949); Act 550, 1947 Pa. Laws. The
Pennsylvania community property law was held unconstitutional in Willcox v.
Penn. Mut. Life Ins. Co., 357 Pa. 581, -, 55 A.2d 521, 531 (1947).
3. A discussion of certain laws of the various common-law states and community property states that relate to property and marriage is beyond the scope of this
article. These laws include: the duty and extent of the spouses to support each
other and the family; designation of a head of the family; provisions for alimony,
maintenance, child support and the like on dissolution of the marriage; rights of the
spouses to the homestead; and rights of the surviving spouse and family to post-
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parison will reveal that the practical effects and philosophical basis of the community property system is, on balance, more
compatible with the present day appreciation of both the rights of
women and the marital relationship.
To fully appreciate the comparison of these two marital property systems, it is helpful to have some understanding of the principles, history, and philosophy of the two systems, with particular
emphasis on the less common and familiar community property
system.
GENERAL NATURE OF COMMUNITY PROPERTY
Because each community property state has its own constitution and statutes, there are variations in each state's community
property system. 4 Even in instances where the statutes of several
states are substantively similar, the statutes have often been construed differently by the courts. Nevertheless, with few exceptions, the basic principles and general outline of the community
property system are present in all the community property states.
Under the community system, property is classified either as
separate property or community property. Separate property generally consists of: the property that a spouse owned prior to the
marriage; the property that a spouse received during the marriage
by gift, devise, or descent; and other property acquired by a spouse
during the marriage which can be traced back through its mutations to property included in either of the first two classifications.
Also, in some states the income from separate property received
during marriage remains separate property 5 while in other states
such income is considered community property.6 Throughout the
mortem allowances. Differences in these areas of marital rights can and do exist
between the various common-law states and community property states. These differences are not, however, ones which reflect inherent differences between the two
systems and, therefore, are not presently considered.
4. For the varying theories of community property ownership, see Evans, The
Ownership of Community Property, 35 HARv. L. REV. 47 (1921).
5. George v. Ransom, 15 Cal. 322, 324-25 (1860); ARiZ. REV. STAT. § 25-213
(1976); NEV. REV. STAT. § 123.130 (1973); N.M. STAT. ANN. §§ 57-4A-2-A, -C (Supp.
1975); WASH. REV. CODE ANN. §§ 26.16.010 & 26.16.020 (1961).
6. Claflin & Co. v. Pfeifer, 76 Tex. 469, 473, 13 S.W. 483, 485 (1890); Epperson v.
Jones, 65 Tex. 425, 428 (1886); De Blane v. Lynch, 23 rex. 25, 29 (1859). The Idaho
Code also provides that if the instrument by which the wife acquires separate property provides that the rents and profits therefore be applied to her sole and separate
use, then the management and disposal of such rents and profits belong to the wife.
IDAHO CODE § 32-906 (1963). The Louisiana Code allows the wife, by written instrument, to reserve the income of her paraphernal property for her own separate use
and benefit. LA. CIv. CODE ANN. arts. 2386, 2402 (1972).
The California courts and Texas courts reached different results on the question of whether income from separate property is community property or separate
19791
PROPERTY
marriage each spouse retains the ownership of his or her separate
property and the corresponding right to control, manage, and dispose of such property. The community property of the spouses, on
the other hand, consists of all other property acquired by the
spouses during the marriage. 7 Thus, the acquests and gains of the
marriage generally fall into the community property classification.
Each spouse owns a present, vested, undivided one-half interest in
all the community property of the spouses. Consequently, each
spouse is entitled to such an interest in the community property
regardless of its source and regardless of which spouse is directly
responsible for the acquisition of the property.
As a result, during the marriage the spouses form a conjugal
partnership. Each spouse performs duties within the partnership
and is entitled to share equally in the community property generated by the partnership, regardless of the quality or quantity of
each spouse's contributions to the partnership.
The foregoing is a vast oversimplification of the general principles of the community property system. 8 Hopefully, however, it
outlines the characteristics of the community property system
which distinguish it from its common-law counterpart.
ORIGINS AND DEVELOPMENT OF THE COMMUNITY
PROPERTY SYSTEM
Prior to the birth of the community property system on the
European continent, the husband was the lord and master of the
property. While arriving at different conclusions both courts were attempting to
accomplish the same thing; namely, protection of the wife. The California court
which held that the income of the wife's separate property was also her separate
property sought to protect that income from the husband's creditors. George v.
Ransom, 15 Cal. 322 (1860). The ruling applied reciprocally to the husband's separate property so that income therefrom increased his separate property rather than
becoming community property in which the wife was entitled to share. Thus, the
rule which resulted from the desire to protect the wife could be used to her detriment if the husband had large separate holdings and the wife had none. See Beam
v. Bank of America, 6 Cal. 3d 12, 490 P.2d 137, 98 Cal. Rptr. 137 (1971).
It was precisely this disadvantage to the wife that the Texas court relied on to
support its rule that income from separate property is community property. De
Blane v. Lynch, 23 Tex. 25, 28-29 (1859). The Texas court, of course, thereby left the
income of the wife's separate property subject to the husband's creditors. See
Younger, Community Property, Women and the Law School Curriculum, 48
N.Y.U.L. REV. 211, 220-22 (1973).
7. ARIZ. REV. STAT. § 25-211 (1976); CAL. CIV. CODE § 5110 (West Supp. 1979);
IDAHO CODE § 32-906 (1963); LA. CIV. CODE ANN. art. 2324 (1971); NEV. REV. STAT.
§ 123.220 (1973); N.M. STAT. ANN. § 57-4A-2-B (Supp. 1975); TEx. FAM. CODE § 5.01(b)
(1975); WASH. REV. CODE ANN. § 26.16.030 (1961).
8. For a complete discussion of the principles of the community property system, see W. DE FUNIAx & M. VAUGHN, PRINCIPLES OF COMMUNITY PROPERTY (2d ed.
1971).
CREIGHTON LAW REVIEW
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marriage, both as to the person and property of the wife. He had
sole ownership and possession of all marital property and virtually
unlimited control over it.9 Gradually, customs or folk-laws developed among the Germanic tribes that gave the wife increased
rights and protection with respect to marital property. To meet its
own individualized needs, each tribe developed its own set of unwritten laws to govern marital property. Some tribes developed
the concept that the marital property was owned collectively by
the spouses as an indivisible whole with the ownership rights of
the spouses being more or less equal. 10 This development marks
the hazy beginning of the gananical community property system
which makes the acquest and gains accumulated during the marriage the community property of the spouses.
The Visigoths, a Germanic tribe that followed the gananical
community system, brought the system to Spain after the collapse
of the Roman empire." The Visigoths' legal system, including the
community property system, dominated and eventually replaced
the existing Roman law.12 The now Spanish system of community
property was exported with the rest of Spanish law to Spain's colo3
nies in the New World.'
As the United States acquired territories from Spain, 14 either
directly or indirectly by way of Mexico and Texas, the community
system continued to exist or was adopted in the territories that
now comprise the community property states.' 5
9. R. HUEBNER, A HISTORY OF GERMANIC PRIVATE LAW 622 (1918).
10. Id. at 627-46. The husband, however, never relinquished his power to possess and administer all the marital property. Id. at 632.
11. W. DR FUNIAK & M. VAUGHN, supra note 8, at 4:3.
12. The culmination of the Visigoths' dominance was the preparation and publication of the Fuergo Juzgo in A.D. 693. This work was the first written recognition
of community property. Shortly after the Fuergo Juzgo was written, the Moors invaded Spain and conquered all but the mountainous area of extreme Northern
Spain. It took the Spanish 800 years to entirely expel the Moors from Spain. The
continued existence of community property through such a protracted period of
war, political unrest and change is an indication of its vigor. W. DE FUNIAK & M.
VAUGHN, supra note 8, at 43-47.
13. Id. at 52-54.
14. Louisiana community property has a hybrid Spanish-French origin that
makes it unique. See id. at 58-68; Comment, Origin and HistoricalDevelopment of
the Community Property System, 25 LA. L. REV. 78 (1964). There has been a great
deal of recent dispute over the exact origin of the Louisiana laws. See Batiza,
Sources of the Civil Code of 1808, Facts & Speculation: A Rejoinder, 46 TuL. L. REV.
628 (1972); Batiza, The Louisiana Civil Code of 1808, Its Actual Sources and Present
Relevance, 46 TUL. L. REV. 4 (1971); Pascal, Sources of the Digest of 1808, A Reply to
ProfessorBatiza, 46 TUL. L. REV. 603 (1972); Sweeney, Tournament of Scholars Over
the Sources of the Civil Code of 1808, 46 TUL. L. REV. 585 (1972).
15. See generally W. DE FUNIAK & M. VAUGHN, supra note 8, at 55-91; Kirkwood,
Historical Background and Objectives of the Law of Community Property in the
Pacific Coast States, 11 WASH. L. REV. 1 (1936); Loewry, The Spanish Community of
1979]
PROPERTY
CAUSES THAT PRODUCED THE COMMUNITY PROPERTY
SYSTEM
IN GENERAL
The general causes of the community property system were
economic in nature. 16 Before the origination of the community
system among the Germanic tribes, only males were able to inherit
property. The females' inability to inherit, coupled with their not
working for wages or property, made it difficult for a wife to acquire property and contribute it to the marriage. The result was
that the law gave the husband virtually unlimited control over his
wife and her property. 17 Gradually females became capable of
holding and inheriting property and this allowed them to bring increasing amounts of property into the marriage. 18 The contributions of the spouses to the marriage, both in terms of property and
services to the family, became more equal. The property of the
spouses owned prior to marriage and the fruits of their mutual labors became increasingly commingled which made it difficult, if
not impossible, to trace the ownership of individual items. As a
result, the property owned by the spouses was treated as being
owned in common. The basis of the community system was thus
established.
IN THE UNrrED STATES
As territories shrugged off their foreign domination and enacted their own laws, many of the individual territories decided to
continue or adopt the community property system. With the exception of Louisiana, each territory adopted from the civil law only
the community property system and assimilated the common law
in all other respects.1 9 Why did these states embrace the community property system while rejecting the rest of the civil law? Un20
fortunately, the reasons for this anomalous situation are unclear.
There appear to be two general notions which seek to explain
Acquests and Gainsand Its Adoption and Modification by the State of California,1
CALIF. L. REv. 32, 36 (1912). McKnight, Texas Community PropertyLaw-Its Course
of Development and Reform, 8 CAL. W. L. REV. 117 (1971).
16. J. BRISSAUD, A HISTORY OF FRENCH PRIVATE LAw 817 (1912); W. DE FUNIAK &
M. VAUGHN, supra note 8, at 16-19; R. HUEBNER, supra note 9, at 630. There is no
indication that religion or a refined social nature contributed to origins of the system. W. DE FUNIAK & M. VAUGHN, supra note 8, at 23.
17. R. HUEBNER, supra note 9, at 629-32.
18. Id. at 623.
19. Younger, Community Property,Women and the Law School Curriculum, 48
N.Y.UL. REV. 211, 215-16 (1973).
20. See Kirkwood, supra note 15, at 9; Younger, supra note 9, at 211, 216.
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the reasons why the community property system was excepted
from the adoption of the general common law. The first notion was
that there was general dissatisfaction with the common-law treatment of the wife's marital rights and, under the circumstances of
the time, the community property system was considered to be su-
perior to that of the common law. 21 Second, the community property system was retained because those factors which had
originally produced the system continued to exist; to wit, an equal
sharing by the spouses of the work necessary to provide the neces22
sities of life for the family.
COMMON-LAW PROPERTY SYSTEM
UNMODIFIED FORM
The common-law property system which originated in England 23 after the Norman conquest was exported to the American
21. Kirkwood, supra note 9, at 11. At the California Constitutional Convention
in 1849, arguments were advanced against the common-law system and for the continuation of the community system. These arguments can be summarized as follows: (1) the continuation of the community system would protect the legitimate
interests of the long time residents; (2) the community system would protect wives
and families from the husband's idleness, misconduct and misfortune; (3) the community system would attract women to California; (4) the community system was
already in existence and was working well in California and Texas and (5) the common law was introduced when the wife was in a position far inferior to her position
in the 1840s and the common law system had failed to keep pace with the advance
of civilization. See McGinty, Common Law and Community Property: Origin of the
CaliforniaSystem, 51 CAL. ST. B.J. 370, 482, 532 (1976). The arguments voiced at the
Convention in favor of the adoption of the common law marital property system can
be summarized as follows: (1) adoption of the community system would drastically
alter the legal effects of the marital property system as they were known by ninetenths of the people in California who had immigrated from the common law states,
(2) the community system would produce dissension and strife between the
spouses and would be destructive of the real interests of the marriage relationship
and (3) it was better to put the wife under the protection of the husband, as the
common law did, than to put her under the protection of the law as the community
system did, because a husband is better able to care for his wife than is the law.
See McGinty, supra, at 481.
Further evidence of the dissatisfaction with the common law approach to marital property rights during the period when the continuation or adoption of the community system was being debated, can be seen by the enactment of the first
married women's property act in 1839.
22. W. DE FUNIAK & M. VAUGHN, supra note 8, at 25.
23. The usual reasons why the community property system was not established in England are: (1) jurisdiction over testate and intestate succession was
placed in the ecclesiastical courts which followed the canon law that did not recognize community property and that perceived the husband's absolute control over
the wife's chattels as proprietary, and (2) the tendency of community property to
develop among the mass of common people which was incompatible with English
belief that "the law for the great becomes the law for all." 2 F. POLLOCK & F.
MAITLAND, THE HISTORY OF ENGLISH LAw 402-03 (2d ed. 1968).
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PROPERTY
colonies and eventually adopted by forty-two of the American
states and the District of Columbia.
The early common-law property system can be characterized
by the two major principles which became applicable on marriage.
First, the wife's legal identity merged into that of the husband's
and ceased to exist. Second, there was a total domination of the
wife by the husband. 24 The husband became absolute owner of his
wife's chattels 25 and, while not given title to his wife's land, he did
acquire valuable rights therein, 26 including the estate by marital
rights or jure uxoris27 and curtesy. 28 These rights taken together
deprived the wife of her chattels and of virtually all the valuable
rights in her land.
In contrast, marriage at early common law afforded the wife
only three less important rights. First, the wife was the recipient
of the husband's duty to support her. Second, during marriage the
husband was liable for the antenuptial debts and wrongs of his
wife and for all wrongs committed by her during marriage. Third,
the wife was entitled to dower. 29 Generally, a widow had no claim
24. Several origins and justifications of this legally sanctioned male superiority
have been advanced. One explanation is that the husband was merely serving as a
legal guardian for his wife and her property. 2 F. POLLOCK & F. MAITLAND, supra
note 23, at 406; 1 AMERICAN LAW OF PROPERTY 760-62 (A.J. Casner ed. 1952) [hereinafter cited as Am. L. OF PROP.].
A second explanation is that the wife, in exchange for her husband's protection
and support, bargained away her property and personal rights to her husband as
part of the marriage contract. A final explanation for the male dominance was that
there could be only one head of the household and that the husband, because of his
superior physical strength, experience and business aptitutde, was the natural
choice. J. BISHOP, LAW OF MARRIED WOMEN 26-29 (1875).
25. 3 W. HOLDswORTH, A HISTORY OF ENGLISH LAW 526-27 (6th ed.); F. POLLOCK
& F. MAITLAND, supra note 23, at 404.
26. 3 W. HOLDSWORTH, supra note 25, at 525.
27. The estate lasted until issue was born alive or until the marriage was dissolved prior to the birth of living issue. The estate by marital right attached to all
lands of which the wife was seized at the time of marriage and to all lands of which
the wife became seized during coveture, prior to the birth of living issue. The estate
entitled the husband to the exclusive use and possession of the lands during the
existence of the estate together with all the income, rents and profits therefrom.
See generally Haskins, The Estate by MaritalRight, 97 U. PA. L. REv. 345 (1949); 1
Am. L, OF PROP., supra note 24, at 762.
28. If issue was born alive to the marriage, the husband received an estate
known as curtesy initiate in all lands.
29. The inchoate right of dower was a protected inchoate expectancy which
entitled the wife to a life estate after the death of her husband in one-third of all the
lands of which the husband was solely and beneficially seized at any time during
the marriage and of Which the issue of the marriage, if any, was capable of inheriting. The life estate in one-third of the qualifying lands entitled the wife to the use
and possession of such lands and the resulting income and gains therefrom. See
generally 1 AM. L. OF PROP., supra note 24. For a discussion of the development of
dower, see Haskins, The Development of Common Law Dower, 62 HARv. L REv. 42
(1948).
CREIGHTON LAW REVIEW
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to any of her husband's chattels, except such interest as the laws
of intestate succession might give her. Such intestate share could
be defeated, however, by her husband's inter vivos or testamen30
tary disposition and by her husband's creditors.
As MODIFIED BY EQUITY
The disparity between the marital rights of husband and wife
was profound. It is not surprising that methods were sought to
ameliorate the ignominious effects of the common-law property
system. Eventually, equity provided a measure of relief for wives.
Equity developed the doctrine of the wife's equity to a settlement.31 This doctrine provided that before a husband could use
the equity courts to enforce his common-law property rights
against his wife, and her previously acquired property, he was required to make adequate provision for his wife's support from such
property.
As a further measure of relief from the harsh common-law
marital property system, equity developed a method of creating a
wife's separate estate which was largely free of husband's marital
property interests. 32 If property was conveyed to a trustee for the
sole and separate benefit of a married woman, her beneficial interest in the property was not subject to her husband's estate by marital right. The wife thus received the full benefit of the property
during the marriage to the exclusion of her husband. Initially the
equity court required the use of a valid trust in order to create this
separate estate in the wife, but later a transfer to a wife for her sole
and separate use without the creation of a valid trust was sufficient
to create a separate estate in the wife. 33 However, just as equity
allowed the husband's estate by marital right to be defeated or reduced by the creation of equitable interests, it also allowed the
34
wife's right of dower to be similarly defeated.
30. 2 F. POLLOCK & F. MArrLAND, supra note 23, at 405.
31. 1 Am. L OF PROP., supra note 24, § 5.54.
32. Id.
33. Johnston, Sex and Property: The Common Law Tradition,the Law School
Curriculum, and Developments Toward Equality,47 N.Y.U.L. REV. 1033, 1053 (1973).
34. 1 Am. L OF PROp., supra note 24, § 5.23; A. ScoTr, LAW OF TRUSTS § 144 (3d
ed. 1967). It was possible for a man, prior to marriage, to convey all his land to a
trustee for his sole and separate use and thereby during the marriage retain full
beneficial enjoyment of the land; but since he did not have seisin, his wife had no
right to dower in the land. Similarly, real property which was intended to be transferred to the husband during marriage could instead be conveyed to a trustee for
the use and benefit of the husband thereby creating a beneficial interest in the husband which was not subject to his wife's dower. While it became more difficult to
defeat a wife's dower after the adoption of the statute of uses, it was still possible to
construct a legal framework to allow a husband to have complete control and bene-
1979]
As
PROPERTY
MODIFIED BY MARRIED WOMEN'S PROPERTY ACTS
Equity's response to the common-law property system was
both incomplete and antagonistic. 35 The requirement at equity
that property must be settled to the wife's sole and separate use,
the failure of equity to deal with other areas of dissatisfaction with
marital property rights at common law, together with the tendency
of the remedy to be available only to the wealthy, 36 set the stage
for a legislative remedy in the form of the Married Women's Prop38
erty Acts. 37 These acts were often piecemeal and uncoordinated.
Many of the acts improved the position of the wife only slightly 39
and the improvements afforded her by all the acts were subject to
restrictive judicial interpretation. 40 Nevertheless, the various Married Women's Property Acts advanced wives' marital property
rights under the common-law system.
Broadly speaking the objective of the acts was to eliminate the
inequality that existed between husband and wife under the common-law property system. 4 1 Stated another way, the acts sought to
emancipate the wife from her husband's control in certain property matters. 42 In narrower terms the acts were designed to create
in the wife a right to a separate estate and to make that right a
legal estate. 43 By recognizing certain substantive property rights
as belonging to the wife, the acts deprived the husband of some of
fit from his lands without subjecting them to his wife's right to dower. Johnston,
supra note 33, at 1056.
35. 3 W. HOLDswORTH, supra note 25, at 533.
36. W. BROCKELBANK, THE COMMUNITY PROPERTY LAW OF IDAHO 37 (1962); Warren, Husband's Right to Wife's Services, 38 HARv. L. REV. 421, 422 (1925); Warren,
The Law of Property Act, 1922, 21 MICH. L. REV. 245, 273 (1923).
37. McCurdy, Torts Between Persons in Domestic Relation, 43 HARv. L. REV.
1030, 1036 (1930).
38. Johnston, supra note 33, at 1061-62.
39. Id. at 1068-69; see Warren, Husband's Right to Wife's Services, 38 HARV. L.
REV. 421, 422 (1925).
40. Johnston, supra note 33, at 1069.
41. But see Vaughn, The Policy of Community Property and Inter-Spousal
Transactions, 19 BAYLOR L. REV. 20, 37 (1967) (where the author states that the
Married Women's Property Acts had no fundamental objective in mind).
42. McCurdy, supra note 37, at 1037.
43. The acts in many jurisdictions entitled the wife to a legal separate estate
which included generally all property, real or personal, owned by the wife at the
time of the marriage, all property acquired during the marriage by gift, devise or
descent, the mutations of property previously part of her separate estate, income,
profits, and increases from her separate estate and her earnings. The acts authorized the wife to hold her separate estate apart from her husband. She had the
power of control and possession of her separate estate, including the power of alienation. The wife also had full testamentary control over her separate estate. See
generally Kirkwood, Equality of PropertyInterests Between Husband and Wife, 8
MINN. L. REV. 579, 580-82 (1924); McCurdy, supra note 37, at 1036.
CREIGHTON LAW REVIEW
[Vol. 13
his disparate common-law rights." Under the acts, the husband's
estate by marital right, the husband's curtesy initiate, and the husband's right to ownership of his wife's personality on marriage
45
were abolished.
The creation of these new marital property rights for the wife
eroded the male dominance of the common-law marital property
system and represented the demise of the common-law principle
of unity of identity of the spouses in the husband. 46 The erosion,
however, was small and uneven. It was small because the acts left
intact the doctrine of male dominance except in those specific instances where the acts abrogated it. The acts provided limited legal equality as to property owned by the respective spouses, but
ignored the realism that it was the husband who was largely responsible for acquiring property during the marriage. The wife
was left with hollow legal equality since she had little opportunity
to acquire property to which the Married Women's Property Acts
could apply. 47 The erosion was uneven because in some cases the
acts actually provided more protection to the wife than was avail48
able to the husband in a reciprocal situation.
TENANCY BY THE ENTIRETIES
Discussion of the common-law marital property system would
be incomplete without some mention of tenancy by the entireties.
At early common law a tenancy by the entireties arose when property was conveyed jointly to husband and wife in a fashion that
49
caused there to be an unity of time, title, interest, and possession.
The common-law themes of unity of spouses and male dominance 5° were readily identifiable in the major characteristics of the
estate. Consistent with the unity of spouses, the husband and wife
were each seized of the whole property, not merely a share of it;
neither spouse owned a distinct interest in the property but the
spouses together owned the entire interest. In keeping with the
common-law theme of male dominance, the husband, to the exclu44.
45.
McCurdy, supra note 37, at 1037.
1 Am. L. OF PROP., supra note 24, §§ 5.56, 5.60.
46.
W. DE FUNIAK & M. VAUGHN, supra note 8, at 4-5 n.15.
47. Foster & Freed, Marital PropertyReform in New York: Partnershipof CoEquals?,8 FAM. L.Q. 169, 173 (1974); Glendon, Is There a Futurefor Separate Property?, 8 FAM. L.Q. 315, 316 (1974).
48. 2 J. BISHOP, supra note 24, at 526; 3 C. VERNIER, AMERICAN FAMILY LAWS 17071 (1935); Note, 17 VA. L. REV. 398, 399-401 (1931).
49. 2 AM. L. OF PROP., supra note 24, § 6.6; see Francis, Joint Tenancy and Tenancy by the Entirety Four Unities Requirement, 36 Ky. L REV. 202, 202-04 (1948).
50. 2 AM. L OF PROP., supra note 24, § 6.6; Phipps, Tenancy by Entireties,25
TEMPLE L.Q. 24, 24-25 (1951).
19791
PROPERTY
sion of the wife, had the following rights during marriage in and to
the property held in tenancy by the entireties: 51 right to possession of the property, including the right to all income from the asset; right to manage and control the property, including a limited
power of alienation; right to pledge his interest in the property as a
basis for credit; and right to represent the property in any litigation. 52 Consistent with the theme of spousal unity, on the death of
a spouse, the surviving spouse owned the entire interest just as
had been the case when both spouses were living. 53 The adoption
of the Married Women's Property Acts caused the courts of the
various states to take widely divergent views on the continued vitality of tenancies by the entireties. Since the Married Women's
Property Acts did not specifically mention tenancies by the entireties, some courts held that such estates continue unabated as they
existed at common law.5 4 Other courts held that since the acts destroyed the notion of unity of the spouses the estate of tenancy by
the entireties, which relied on that notion, was likewise destroyed.5 5 Another group of courts reasoned that since the acts destroyed the male domination that had previously existed, the
estate of tenancy by the entireties continued to exist but it did so
unencumbered by the incidents of male dominance, such as exclusive right to management and control, possession, income, and the
56
like.
The estate of tenancy by the entireties is inconsistent with the
underlying principles of the community property system and has
not been recognized by those states which have the community
property system. 57 It has been suggested, however, that in a sense,
tenancy by the entireties operates as a substitute for a community
51.
52.
See Phipps, supra note 50, at 25.
Id. These rights in the husband are analogous to the husband's estate jure
uxoris in his wife's lands. C. MOYNIAN, INTRODUCTION TO THE LAW OF REAL PROPERTY 230 (1962).
53. C. MOYNIHAN, supra note 52, at 230; 4A R. POWELL, LAW OF REAL PROPERTY
624, at 707 (1979). This right of survivorship was indistructible. That is, neither
spouse alone, by conveyance or otherwise, had the power to defeat the right of the
other spouse to the entire interest in the event that such spouse survived. Thus,
although the husband had the power to convey or encumber his interest in the
property held by tenancy by the entireties, he could convey or encumber only his
rights to possession, income and the like which he was entitled to during the marriage together with his contingent rights on survivorship. If he were to predecease
his wife, she would own the entire interest and it would not be subject to her husband's prior alienations. See generally Phipps, supra note 50.
54. 2 AM. L. OF PROP., supra note 24, § 6.6; Phipps, supra note 50, at 28.
55. 2 AM. L. OF PROP., supra note 24, § 6.6; see Phipps, supra note 50, at 29.
56. 2 Am. L. OF PROP., supra note 24, § 6.6; 4A R. POWEL, supra note 53, 623;
Phipps, supra note 50, at 29.
57. C. MOYNIAN, supra note 52, at 230.
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[Vol. 13
property system in the common-law states which continue to recognize it.58
The estate of tenancy by the entireties has been widely criti60
cized 59 and there have been persuasive calls for its abolition.
COMPARISON OF THE COMMUNITY PROPERTY SYSTEM
AND THE COMMON-LAW MARITAL PROPERTY
SYSTEM
With the general principles of both the community property
and the common-law marital property systems in mind, some general comparisons between the two systems can be made. 61 Because of the diversity of the common-law system within the
common-law property states, comparisons on too specific a level
are not possible within the scope of this article. Necessarily, the
comparison will be of the general policies and principles of the
contemporary community and common-law marital property systems.
PHILOSOPHY
Partnership/Individuals
The philosophy surrounding the community property system
is that the husband and wife are to be considered as a family unit
or conjugal partnership. The marriage thus forms an economic
unit to which the spouses individually contribute in their own
ways. The financial rewards which result from the contributions of
the individual spouses flow to the conjugal partnership rather than
to the individual member who is directly responsible for the acquisition of particular property. This communal approach recognizes
that the contributions of both spouses are meaningful and that
each spouse should share in the financial gains of the marriage.
The community system accomplishes this sharing by treating each
spouse as the owner of one-half of the property acquired during
the marriage by the joint effort of the spouses.
Although there is an increasing tendency or necessity for both
spouses to be employed, the usual contributions of the wife to the
marriage are of a domestic and child rearing nature and the usual
contributions of the husband are economic in nature. By viewing
58. Id. at 235.
59. 2 AM. L. OF
PROP.,
supra note 24, § 6.6 at 32; C. MOYNIHAN, supra note 52, at
230.
60. See, e.g., 2 Am. L. OF PROP., supra note 24, § 6.6 at 32.
61. See generally Bingham, The Impact of the Equal Rights Amendment on
Married Women's FinancialIndividual Rights, 3 PEPPERDINE L REV. 26 (1975).
1979]
PROPERTY
the economic benefits which the marriage produces as belonging
equally to both spouses regardless of the particular contribution to
its acquisition, the community property system recognizes in a
quantifiable way the domestic and child rearing contributions of
the housewife and mother. The wife by her contributions to the
marriage, is considered to have "earned" her interest in the community property. Even if she did not contribute directly to the acquisition of property, her services enabled or hastened her
62
husband's ability to acquire property.
The partnership approach of the community property system
contrasts with the common-law marital property philosophy which
stresses the individuality of the spouses. 63 This emphasis on individuality results in the common-law system treating the spouses
as strangers with respect to property acquisition and ownership.
Property acquired by the spouses during marriage is either his or
hers, never theirs. This may well be contrary to the way spouses
64
actually perceive the situation.
The common-law system rewards the spouse who is directly
responsible for the acquisition of property and generally ignores
the nonmonetary contributions of the other spouse toward that acquisition. 65 By ignoring such contributions of the nonacquiring
spouse during the marriage, any portion of the other spouse's
property which the nonacquiring spouse receives on the dissolution of the marriage can be perceived as a mere gratuity, albeit
forced perhaps, from the acquiring spouse or his estate. Any feeling that the nonacquiring spouse "earned" the property is absent.
To the extent that the husband (or acquiring spouse) acquired
property during the marriage, the wife (or nonacquiring spouse)
should be entitled to a portion of such property, ab initio, in consideration of her contributions to the marriage.
62. Vaughn, The Policy of Community Property and Inter-Spousal Transactions, 19 BAYLOR L. REV. 20, 40 (1967).
. 63. Professor Powell has criticized the community property system, arguing
that it "submerges the individual husband or wife in a purely imaginary third entity-the family, in a fashion promoting the ultimate welfare of no one. . ." Powell,
Community Property-A Critique of Its Regulation of Intra-Family Relations, 11
WASH. L. REV. 12, 38 (1936). In response, see Vaughn, supra note 62, at 40.
64. Kahn-Freund, Inconsistencies and Injustices in the Law of Husband and
Wife, 15 MOD. L. REv. 133, 135-36 (1952).
65. W. BROCKELBANK, supra note 36, at 41-42. In most common-law jurisdictions where the wife saves money out of her household allowance given her by the
husband, the savings belong to the husband. Kahn-Freund, supra note 64, at 35-38.
The irony of this situation is that the accumulated savings from the household allowance often result from the direct efforts and thrift of the wife, yet they still belong to the husband.
CREIGHTON LAW REVIEW
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Equality
A basic tenet of the community property system has always
been equality between the spouses. 66 In the past, however, the
system's efforts to achieve equality have often failed. While it may
not, because of the biological differences between the sexes, 67 be
possible to achieve total equality with respect to the practical efforts of community property laws, the community property system
marihas recently achieved a high degree of equality between the
68
tal partners both in theoretical terms and practical effect.
It is difficult, if not impossible, to determine accurately the relative worth of the contributions of each spouse to the marriage.
While marriages and the contributions of the spouses often differ,
those contributions, whatever they may be, must at least be acceptable to the spouses themselves. 69 The policy of the community system is to regard the contributions of the spouses as equal
and, as such, the community property which the marriage produces as a result of these contributions is treated as being owned
equally by the spouses. This equal treatment is afforded the
spouses even if it can be demonstrated that in a particular marriage the contributions of the spouses are unequal. 70 This underlying principle of equality 71 of the spouses constitutes the heart of
72
the community property system.
66. W. DE FUNIAK & M. VAUGHN, supra note 8, at 2-3, 24.
67. See, e.g., G. McKAY, A TREATISE ON THE LAW OF COMMUNITY PROPERTY § 68
(2d ed. 1925).
68. California, Nevada, New Mexico, Idaho, Washington, and Arizona recently
modified their community property management provision to provide, with minor
exceptions, for concurrent equal management of the community property. Also
New Mexico recently changed its law to treat the spouses equally, with respect to
community property, on death. This ability to adapt to the changing conditions of
society is a virtue that distinguishes the community system from the common law
system. 1 AM. L. OF PROP., supra note 24, § 5.53; 3 W. HOLDSWORTH, supra note 25, at
532-33; Note, Protection of the Widow: A Common Law View of Community Property, 15 U. FLA. L. REV. 143, 152 (1962).
69. W. BROCKELBANK, supra note 36, at 42.
70. Cole's Widow v. His Executors, 7 Mart. (N.S.) 41, 49 (La. 1828); Wheat v.
Owens, 15 Tex. 241, 243 (1855); Vaughn, supra note 62, at 33.
71. For the effect of Equal Rights Amendments on the community property
laws, see Comment, An Overview of the Equal Rights Amendment in Texas, 11
Hous. L. REV. 136, 156 (1973).
72. But see G. McKAY, supra note 67, at 62. McKay argues that the only equality which exists is the equal division of the community property on dissolution of
the marriage. It is exactly at the time of the dissolution of the marriage, however,
when equality is most important to the wife. During the successful, harmonious
marriage, most spouses do not necessarily observe the legal rules established by
the community property system, but instead establish their own informal understandings. Also, since McKay's book there have been numerous strides taken by
the community property states to more nearly equalize the treatment of the
spouses at all times.
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PROPERTY
It may be argued that in the acquisition of property, the contributions of the husband are of paramount importance. Statistically,
in terms of which spouse is actually compensated in money which
is in turn used to acquire property, it is difficult to quarrel with the
argument. The argument, however, merely reflects that traditionally it is husbands who are employed and wives who are not. This
relationship of employed-husband and domestic-wife has been society's traditional role assignment.
If it can be shown that it is the employed spouse who earns the
money that directly acquires property, should that spouse be given
preferential treatment with respect to the property so acquired?
The common-law approach says yes. Arguably, however, the answer should be no. The spouse with the domestic and child rearing
responsibilities, usually the wife, contributes indirectly to the acquisitions by making it possible for the employed spouse to be employed. In addition, the nonworking spouse's contributions
provide numerous tangible and intangible benefits to the marriage.
Those contributions should not be ignored. Further, the wife
foregoes the opportunity to earn money and thereby to acquire
property so that she might perform the domestic and child rearing
7 3
responsibilities.
The philosophy of the community system balances the contributions of the spouses during the marriage and attempts to balance the interests of the spouses in the property acquired during
marriage. In the common-law marital property system there is no
such philosophy of balance nor even an attempt to balance the
property interests of the spouses.
The unmodified common law gave the husband virtually absolute dominance over his wife. With the exception of real property
which was owned by, or transferred to, the wife, all property acquired during the marriage by either spouse became the property
of the husband. With respect to such real property the husband,
although he did not acquire ownership of this property, was nevertheless entitled to valuable interests in the property. The adoption
of the Married Women's Property Acts afforded a married woman
more equal treatment than she had prior to their enactment. Although these acts generally gave the wife legal rights to own, acquire, manage, and dispose of property, 74 the wife was generally
less able than her husband to capitalize on the opportunity to own
73.
74.
(1974).
Kirkwood, supra note 43, at 592.
O'Neill, Community of Propertyin English Law, 3 ANGLO AM. L. REV. 37,42
CREIGHTON LAW REVIEW
[Vol. 13
and acquire property. 75 A housewife often has no practical opportunity to acquire property and if the opportunity does exist, it is
generally not equal to the opportunity afforded the husband. In
the usual case it is the husband who is employed and the wife who
is not. The husband is therefore responsible for the acquisition of
property and consequently owns the acquired property to the exclusion of the wife.
Thus, while the community system endeavors to treat spouses
equally, it still maintains a practical element of male dominance.
This lack of equality and male dominance is further apparent by
viewing the quantity of the respective spouses' contributions to
the typical marriage. Under the common-law system a wife must
contribute all of her efforts to the marriage relationship while the
husband is only required to contribute sufficient economic effort to
provide support for the family. 76 The remainder of the husband's
contribution takes the form of accumulated wealth that the husband owns in his own right.
Method of Property Acquisition
Under the community property system, with minor exceptions, upon the dissolution of the marriage, each spouse retains
ownership of his or her separate property. It is only the property
which is acquired during the marriage and classified as community
property which is subject to division by the courts. Under the common-law system, however, it is often possible for one spouse to receive an interest in the other spouse's property which was owned
at the time of the marraige or acquired thereafter by gift, devise, or
descent. Thus at common law the marriage and its subsequent
77
dissolution can be a method of property acquisition by a spouse.
While the early common-law marriage was viewed as largely a
property transaction, the modern concept of marriage should not
be so viewed, nor should the common-law marital property system
provide a method of property acquisition by a spouse merely because of the marriage and its subsequent dissolution.
While the common-law system and its philosophy may have
been appropriate in feudal England, the system, even with the
modifications which have since occurred, does not seem appropri78
ate in modern times.
75. W. BROCKELBANK, supra note 36, at 39; Kirkwood, supra note 43, at 592;
Younger, supra note 19, at 213.
76. W. DE FuNLAK & M. VAUGHN, supra note 8, at 7 n.23; Johnston, supra note 33,
at 1036.
77. W. BROCKELBANK, supra note 36, at 32.
78.
H. DAGGErr, THE
COMMUNrrY PROPERTY SYSTEM OF LOUISIANA 3
(1945).
1979]
PROPERTY
DURING MARRIAGE
Quality of Ownership
An essential distinction between the community and commonlaw systems 7 9 is the nature or quality of ownership of the nonacquiring spouse in the accumulations that occur during the marriage. Under the community system, the nonacquiring spouse has
a vested, present ownership interest in one-half of the community
property. If the same property were similarly acquired in a common-law state, the nonacquiring spouse would have no vested,
present interest in the property. At most, such a spouse would
have a form of inchoate expectancy in a portion of the property in
the event that the acquiring spouse predeceases or a potential
right to a portion of the acquiring spouse's property on divorce.
Unfortunately, the contributions of the nonworking spouse are
not quantifiable nor often sentient. Upon the dissolution of marriage either because of the animosity which may exist on divorce
or because the only person who can accurately measure the contribution of the nonworking spouse, that is, the other spouse, is dead,
the contributions of the nonworking spouse can vanish in the heat
generated by the proceedings in divorce or probate court. At the
dissolution of marriage, there are only tangible, material assets remaining and these assets can be directly traced to the employed
spouse. If the nonworking spouse is not treated as an equal owner
of the property acquired during the marriage, the contributions
made by the nonworking spouse will not be recognized or, at least,
will be under-recognized.
Thus, it is arguable that the community property approach of
giving the nonacquiring spouse a present, vested, one-half interest
in the acquired property is more protective of the nonacquiring
spouse than the common-law approach which gives such a spouse
merely the possibility of obtaining a portion of the property sometime in the future.
79. There can be an assortment of problems when a couple migrates from a
community property state to a common law state, or vice versa. See Buchschacher,
Rights of a Surviving Spouse in Texas in MaritalProperty Acquired While Domiciled Elsewhere, 45 TEX. L. REV. 321 (1966); Lay, MaritalPropertyRights of the NonNative in a Community Property State, 18 HASTINGS L.J. 295 (1967); Polasky, Mullin
& Pigman, Estate Planningfor Migrating Clients, 101 TRUSTS & ESTATES 876 (1962);
Sheehan, Selected Community Property Problems of the Migrating Spouse, 7 FAM.
L.Q. 433 (1973). The Uniform Disposition of Community Property Rights at Death
Act has sought to alleviate some of these problems. Umfom DIsPosrToN OF COMMUNIrY PROPERTY RIGHTS AT DEATH ACT §§ 1-3.
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[Vol. 13
Management and Control
There are also distinct differences between the two systems
that exist with respect to the management and control of the property acquired during the marriage.
Under the community system, each spouse retains a virtually
unrestricted 8 ° right to manage and control his or her separate
property.8 1 Until recently, all of the community property states
provided for the husband's virtually unlimited right to manage the
community property. 82 Today this dominance approach exists
only in Louisiana. 83 The remaining community property states
have, in an effort to treat spouses more equally, recently modified
their statutes dealing with the management and control of community property. In Texas each spouse is now entitled to manage and
control the community property that he or she would have owned
if single.8 4 Generally, this would place under a spouse's management and control that spouse's earnings, income from his or her
separate property, recoveries for personal injuries, and the income
from assets in these categories. Other community property, including property subject to the sole management and control of
the spouses which has become commingled, is subject to the joint
management and control of both spouses. 85 The Texas approach is
a step forward in that it provides both spouses with the legal right
to manage certain categories of community property, with those
categories and management rights being applied equally to the
husband and wife. Unfortunately, this legal equality does not
translate into real or practical equality. 136 The right to manage
property means little if the opportunities to acquire property are
limited or nonexistent. This is typically the situation of the nonworking or underemployed spouse, usually the wife. While the
80. But see LA. CIv. CODE ANN. arts. 2390, 2394, 2397 (West 1971). Also there
may be restrictions as to homesteads.
81. ARIZ. REV. STAT. § 25-214A (1976); CAL. Civ. CODE §§ 5102, 5107, 5108 (West
1970); IDAHO CODE § 32-904 (1963); N.M. STAT. ANN. §§ 57-3-3, -7 (1975); TEX. FAM.
CODE ANN. § 5.21 (Vernon 1975); WASH. REV. CODE ANN. §§ 26.16.010, .020 (1961).
82. See W. DE FUNIAK & M. VAUGHN, supra note 8, §§ 113-115.
83. LA. CrV. CODE ANN. arts. 2398, 2404 (West 1971). In some circumstances a
Louisiana wife can be in an advantageous unequal position vis-a-vis her husband.
See Riley, A Revision of the Property Law of Marriage-Why Now?, 21 LA. B.J. 29
(1973). For a discussion of the need to reform Louisiana's male dominant approach,
see Barham, Community Property: Symposium on EqualRights, 48 TUL. L. REV. 560
(1974).
84. TEX. FAM. CODE ANN. § 5.22 (Vernon 1975).
85. Id. § 5.22(b), (c). This is true unless the parties provide otherwise by
power of attorney. Id.
86. Riley, Women's Rights in the Louisiana Matrimonial Regime, 50 TUL. L.
REV. 557, 559 (1976); Williams, Section 5.22 of the Texas Family Code: Control and
Management of the MaritalEstate, 27 Sw. L.J. 837, 840 (1973).
19791
PROPERTY
wife is caring for the husband, home and children, her opportunities to acquire and manage property are limited and she is therefore at a disadvantage vis-d-vis her husband.
The remainder of the community property states have modified their statutes dealing with management and control of community property to provide, with minor exceptions and
variations, 87 that either spouse alone may manage and control the
community property, but that the consent or joinder of both
spouses is required in order to transfer or encumber community
real property. 88 This approach, taken by the majority of community property states, provides the nonacquiring spouse legal and
practical equality with the acquiring spouse. 89 This approach also
seems to be more consistent with the underlying philosophy of the
community system that the marriage is a conjugal partnership and
that both spouses contribute equally to the acquisition of the prop90
erty.
It has also been argued that when laws providing for the concurrent and equal management of community property are combined with the Equal Credit Opportunity Act, 9 1 it becomes easier
for a nonwage earning wife to obtain credit. Since she is the owner
of one-half of the community property and has the power of man92
agement and control, her credit worthiness is enlarged.
The concurrent and equal management of community property is not without its potential problems. For example, there can
be a problem with respect to a spouse who operates a community
property business should the other spouse use the power to man87. If title to personal community property is in the name of only one spouse,
then that spouse had the power to manage and if title to such property is jointly
held by the spouses, then the spouses have joint management rights. N.M. STAT.
ANN. § 57-4A-8 (1975). Leases of more than one year in Arizona and California and
all leases in New Mexico require joint action. ARIZ. REV. STAT. § 25-214(c) (1) (1976);
CAL. CIV. CODE § 5127 (West 1970); N.M. STAT. ANN. § 57-4A-7 (1975). Joinder for the
acquisition of community property is required in Arizona, Nevada and Washington.
ARIz. REV. STAT. § 25-214(c) (1) (1976); NEV. REV. STAT. § 123.230.1 (1973); WASH.
REV. CODE ANN. § 26.16.030 (1961). Gifts of community property are restricted without the consent of both spouses in California, Nevada and Washington. CA. Cry.
CODE § 5125(b) (West 1970); NEV. REV. STAT. § 123.230.1 (1973); WASH. REV. CODE
ANN. 26.16.030 (1961).
88. ARIz. REV. STAT. § 25-214(c)(1) (1976); CAL. Crv. CODE § 5125 (West 1970);
IDAHO CODE § 32-912 (1948); NEV. REV. STAT. § 123.230 (1973); N.M. STAT. ANN. § 574A-7 (1975); WASH. REV. CODE ANN. § 26.16.030(3) (1961).
89. Children, Brothers, Chan, Grove, & Pressman, Towards True Equality: Reform in California'sCommunity Property Law, 5 GOLDEN GATE L. REV. 407, 409
(1975). But see Bingaman, Equal Management of Community Property and Equal
Credit Opportunity, 13 IDAHO L. REV. 161 (1977).
90. Riley, supra note 86, at 560.
91. 15 U.S.C. § 1691(a)-(e), as amended by Pub. L. No. 94-239,90 Stat. 251 (1976).
92. Bingaman, supra note 89, at 161; Bingaman, supra note 61, at 31.
CREIGHTON LAW REVIEW
[Vol. 13
age and control in a way which interferes with the operation of the
business.9 3 Also, in some community property states the spouse
with the power to manage certain community property can, acting
alone, make an inter vivos gratuitous transfer of that property and
thereby defeat the other spouse's one-half interest. 94 The transfer
will be upheld unless it is illusory95 or a fraud on the rights of the
nontransferring spouse. 96 In other community property states 97 an
inter vivos, gratuitous transfer of community property cannot be
made by one spouse unless the transfer is a "mere trifle." 98 This
latter approach is preferable as it protects the nontransferring
spouse in a manner which is consistent with the protection offered
testamentary transfers. 99
The common-law system as modified by the Married Women's
Property Act provides that each spouse shall manage the property
they own at the time of marriage and all property which the spouse
is responsible for acquiring during marriage. This ostensible
equality in management and control again results in practical inequality to the detriment of the nonworking spouse who often has
little opportunity to acquire property. The common-law approach
is similar to the Texas approach and has similar shortcomings.
When considering equality of treatment, it seems readily apparent that the common-law system of management and control of
marital property is inferior to the concurrent and equal management powers of spouses residing in the majority of community
property states. The system adopted by these community states
also seems to be more consistent with the actual practices of families residing in Louisiana, Texas and the common-law states. 10 0
93. Macdonald, The Impact of Equal Management Upon Community Property
Businesses, 13 IDAHO L. REV. 191 (1977). But see Riley, supra note 83, at 560 n.23.
94. See generally Johanson, Revocable Trusts and Community Property The
Substantive Problems, 47 TEX. L. REV. 537, 558-78 (1969). Arizona, Idaho, and New
Mexico except real property from gratuitous transfer by the managing spouse. See
ARiz. REV. STAT. ANN. § 25-214c (1976); IDAHO CODE § 32-912 (Cum. Supp. 1979); N.M.
STAT. ANN. § 40-3-13 (1978).
95. Land v. Marshall, 426 S.W. 2d 841, 846 (Tex. 1968).
96. See generally Note, Gifts in Fraudof the Rights of the Wife, 26 BAYLOR L.
REV. 85 (1974).
97. E.g., CAL. CrV. CODE §§ 5125, 5127 (West 1970); TEX. FAM. CODE ANN. §
5.22(b) (1975) (as to community property subject to joint control); WASH. REV.
CODE ANN. § 26.16.030 (1961).
98. Marston v. Rue, 159 P. 111, 112 (Wash. 1916).
99. See Johanson, supra note 94, at 563.
100. Riley, supra note 86, at 561.
19791
PROPERTY
Liability
1. PremaritalObligations
Under the laws of the various community property states, a
spouse's separate property is liable for the payment of debts incurred by that spouse prior to marriage 1° ' but cannot be looked to
in discharging the other spouse's prenuptial liabilities. 10 2 Unfortunately, there is not a similar rule governing the extent to which the
spouses' community property is available to satisfy their ante nuptial liabilities. Texas, California, Arizona, and Washington each
take a different approach in determining the extent to which community property is liable for the antenuptial debts of the spouses.
In most circumstances, however, the various approaches reach
similar results.
In general, Texas provides that a spouse's earnings, revenue
from the spouse's separate property, recoveries for personal injuries, and the revenues and increases from these categories are not
subject to the other spouse's antenuptial obligations. 0 3 California
merely provides that a spouse's earnings are not subject to the antenuptial obligation of the other spouse. 10 4 Arizona, on the other
hand, provides that the community property of the spouses is liable for the antenuptial liabilities of a spouse incurred after September 1, 1973, but only to the extent of the value of that spouse's
contribution to the community property which could have been
such spouse's separate property if single. 105 Consequently, the Arizona approach excludes a spouse's earnings from liability for the
other spouse's obligations. In Washington the only community
property available to a spouse's antenuptial obligations is that
spouse's "earnings and accumulations.' 10 6 Since in California, Arizona, and Washington, the income from a spouse's separate property is also his or her separate property and thus not liable for the
other spouse's antenuptial obligations, these states along with
Texas exclude the spouse's earnings and the income from such
spouse's separate property from liability for the other spouse's antenuptial obligations. In a usual situation where the community
101. E.g., CAL. CIV. CODE § 5121 (West 1970); IDAHO CODE § 32-911 (1963) (as to
the wife); LA. CIv. CODE ANN. art. 2403 (West 1971); N.M. STAT. ANN. § 57-4A-4(A)
(Supp. 1975).
ARiz. REV. STAT. § 25-215 (1976); CAL. CrV. CODE § 5120 (West 1970); IDAHO
§ 32-910, -911 (1963); LA. Crv. CODE ANN. art. 2403 (West 1971); NEV. REV. STAT.
§ 123.050 (1973); N.M. STAT. ANN. § 57-4A-4(A) (Supp. 1975); TEx. FAM. CODE
§ 5.61(a) (Vernon 1975); WASH. REV. CODE ANN. § 26.16.200 (1961).
103. TEx. FAM. CODE ANN. tit. 1, §§ 5.61(b) (1), .22(a) (Vernon 1975).
104. CAL. CIv. CODE § 5120 (West 1970).
105. ARIz. REV. STAT. § 25-215B (1976).
106. WASH. REV. CODE ANN. § 26.16.200 (Supp. 1978).
102.
CODE
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property of a couple consists only of earnings and income from
separate property, the four states have similar provisions for the
type of community property that will be liable for the spouse's antenuptial obligations. If a particular category of community property can be reached to satisfy an antenuptial obligation of a
spouse, then both spouses' community interest in that property
10 7
can be reached to satisfy the antenuptial obligation.
The result is different in Nevada and New Mexico. In those
states the entire spectrum of community property is subject to liability for the antenuptial obligations of a spouse, but it is only that
spouse's one-half community interest, and not the other spouse's
one-half interest that can be reached. 08 This approach would appear to be most consistent with the true nature of community
property. If each spouse has a vested, present one-half interest in
the community property and is considered the owner thereof, then
such interest in the community property is just as much as the
spouse's property as his or her separate property. As such, it, like
the separate property of the spouse, should not be subject to the
other spouse's antenuptial obligations. 0 9
In Idaho and Louisiana the community property is liable for
the antenuptial obligations of the husband but not for similar obligations of the wife." 0 This approach developed originally because
the husband was given the power to manage and control the community property."' Since Idaho has recently enacted legislation
to give both spouses concurrent and equal rights to manage the
community property" 2 and thereby removed the policy which supported the need for a distinction between a wife's premarital obligations and those of her husband. Idaho courts should be
expected to treat premarital obligations of the spouses in a sexually neutral manner. Louisiana, on the other hand, presently retains the husband as the manager of the community property, and
would be expected to continue to recognize the distinction between the prenuptial obligations of the spouses." 3
107. In some other situations, the results can be different. For example, a personal injury recovery of a spouse is not liable for the antenuptial obligations of the
other spouse in Texas and probably not in Arizona and Washington, but apparently
would be liable in California. Further, Texas exempts the income and increases of
a spouse's earnings, income from such spouse's separate property and personal injuries from the other spouse's antenuptial obligations, but these items of community property would appear to be liable in California.
108. NEV. REV. STAT. § 123.050 (1973); N.M. STAT. ANN.§ 57-4A-4A (Supp. 1975).
109. W. DE FuNiAK & M. VAUGHN, supra note 8, at 374.
110. Id. at 375-76; W. BROCKELBANK, supra note 36, § 4.5.
111. See W. DE FuMAK & M. VAUGHN, supra note 8, at §§ 113-115.
112. IDAHO CODE § 32"912 (Supp. 1979).
113. Louisiana Civil Code Article 2403 provides in part: "the debts of both hus-
19791
PROPERTY
Under the early common law, the husband and his property
were liable, not only for his antenuptial obligations, but also those
of his wife.'1 4 This shifting of liability at marriage for the wife's
antenuptial obligations from the wife to her husband was consistent with the husband acquiring his wife's personal property and
valuable rights in her real property. 115 It was also a function of the
concept of unity of the spouses in the husband. 1 6 To the extent
that they have not been abrogated or modified by legislation or judicial decision, these early common-law rules continue to govern
antenuptial obligations.
The majority of the Married Women's Property Acts not only
allow a wife to own her own property, but also eliminate or strictly
limit the husband's liability for his wife's antenuptial debts." 7 In a
large majority of the states, the husband's liability is expressly
eliminated. 1 8 In others, he is not liable unless he assumes such
debts in writing or is only liable to the extent of the value of the
property which he receives from his wife." 9 If states which have
no express legislation on the husband's liability for his wife's
debts, it seems that there is little likelihood of liability being im120
posed on him.
Consequently under the various legislatively modified common-law systems, the husband and his property are solely liable
band and wife, anterior to the marriage, must be acquitted out of their own personal
and individual effects." Early Louisiana cases viewed the husband as the owner of
the community property with the wife having only a mere expectancy. Hawley v.
Crescent City Bank, 26 La. Ann. 230, 230 (1874); Davis v. Compton, 13 La. Ann. 396,
396 (1858); Guice v. Lawrence, 2 La. Ann. 226, 228 (1847). Based on this, the courts
held that the community property was liable for the husband's antenuptial obligations. Later case holdings and now a statute, LA. CIV. CODE ANN. art. 2398 (West
Supp. 1979), confirm that each spouse had an equal present ownership in the community property. Bender v. Pfaff, 282 U.S. 127, 131 (1930); Succession of Weiner, 203
La. 699,-, 14 So. 2d 475, 479 (1943). Even though there has been this clarification of
the spouse's ownership interest, apparently the community property still is liable
for the husband's antenuptial debts, but not the wife's.
114. 3 C. VERNIER, supra note 48, at 30.
115. Cannon v. Grantham, 45 Miss. 88 (1871); 3 C. VERNIER, supra note 48, at 30.
But see Fultz v. Fox, 48 Ky. 499, 300-01 (lB. Mon. 1849). The husband's obligation
was not limited to the amount of property he acquired from his wife at marriage.
Harrison v. Trader, 27 Ark. 288, 289-90 (1871); 3 C. VERNIER, supranote 48, at 30. His
obligation arose even though she owned no property. Cannon v. Grantham, 45 Miss.
88, 92 (1871); Feit v. Holsopfel, 104 Misc. 73, -, 171, N.Y.S. 277, 279 (Sup. Ct. 1918).
116. Other grounds for the rule have also been expressed. See, e.g., Fultz v. Fox,
48 Ky. 499, 501 (1 B. Mon. 1849) (imprisonment for nonpayment of debts).
117. Note, 45 WASH. L. REV. 191, 191 (1970); Note, 18 VA. L REV. 795, 795-96 (1932);
see Smith v. Martin, 124 Mich. 34, 35, 82 N.W. 662, 662-63 (1900). Contra Kies v.
Young, 64 Ark. 381, 386, 42 S.W. 669, 672 (1897).
118. 3 C. VERNIER, supra note 48, at 30.
119. Id. at 31.
120. Id. at 32.
CREIGHTON LAW REVIEW
[Vol. 13
for his antenuptial obligations; and the wife and her property are
solely liable for her similar obligations.
The results in those jurisdictions which have modified the
common law approach to antenuptial obligations and the results
under the community property system in Texas, California, Arizona, and Washington are comparable. In the usual circumstances, a spouse's separate property, income therefrom, and such
spouse's earnings are not liable for the other spouse's antenuptial
obligations. In Nevada and New Mexico only the debtor-spouse's
interest in community property is liable for the debtor's antenuptial obligations.
2.
Obligations Created During Marriage
The manner in which the various community property states
deal with the liability of the marital property for debts created after marriage is, at best, confusing. Some states do not provide adequate legislation on the subject and as a consequence much of
their law on the subject is case law. 12 1 Generally the liability of
property for postnuptial debts is a function of the contracting
spouse's power of management and control over that property.
Since several of the states which rely on case law have recently
altered their legislation dealing with the power of the spouses to
manage and control the community property, 122 future case law is
somewhat unpredictable. In addition, there is little similarity in
the laws of those states which have enacted adequate legislation.
An examination of the laws of Texas, California, and Arizona
will permit an adequate discussion and comparison of the divergent approaches taken by the community property states.
In Arizona debts created after the marriage are divided into
community debts and separate debts. 123 A community debt is a
debt arising out of a transaction intended to benefit the community. 124 A separate debt is one incurred in a transaction which is
not intended to benefit the community. To assist in the determination of whether a debt is separate or community, the law provides
121. Those states are Nevada and Louisiana.
122. E.g., IDAHO CODE § 32-912 (Supp. 1979); NEV. REV. STAT. § 123.230 (1977).
123. Aiz. REV. STAT. § 25-215 (1976). Washington's approach to post-marital liabilities is similar to that of Arizona. WASH. REV. CODE ANN. § 26.16.200 (Supp. 1978).
New Mexico has by statute defined separate debts and community debts. N.M.
STAT. ANN. §§ 57-4A-3-A, -B (Supp. 1975). The New Mexico definitions do not include as a separate debt, post-marital, non-tortious debts which are incurred not for
the benefit of community property. Id.
124. Hofman Co. v. Meisner, 17 Ariz. App. 263, -- , 497 P.2d, 83, 87-88 (1972);
Keplinger v. Boyette, 6 Ariz. App. 514, -, 433 P.2d 1006, 1009 (1967); Donato v.
Fishburn, 90 Ariz. 210, -, 367 P.2d 245, 247 (1961).
1979]
PROPERTY
a presumption that debts created during the marriage are community in nature. 125 If the debt or obligation is a community one, then
the entire interest of both spouses in the community property is
primarily liable for payment of the debt or obligation. 126 The separate property of the contracting spouse is secondarily liable to satisfy the debt or obligation. 127 Although there is not a specific
statutory provision exempting the separate property of the noncontracting spouse from liability from a community debt, it would
appear that such spouse's separate property should not be liable. 28 If, on the other hand, the Arizona debt or obligation is determined to be a separate one created after September 1, 1973, then
only the separate property of the contracting spouse is liable for
the payment thereof. The community property is not liable for
these postnuptial separate debts. 129 The separate property of the
noncontracting spouse is not liable for the other spouse's separate
debts or obligations. 130 Arizona law provides a similar separate/community distinction with respect to torts occurring during
marriage. If the tort arises from the action of a spouse's furtherance of the community interest, then it is a community tort and the
entire community property of the spouses along with the tort-feasor's separate property are liable. 13 1 If, on the other hand, the tort
does not arise in furtherance of the community interest, then it is a
separate tort and only the tort-feasor's separate property is lia32
ble.1
California law does not make a distinction between separate
and community debts.133 All debts created after marriage are obligations of the entire community property of both spouses. 34 The
125. Donato v. Fishburn, 90 Ariz. 210, -, 367 P.2d 245, 246 (1961); Morgan v.
Bruce, 76 Ariz. 121,-, 259 P.2d 558, 560 (1953); McFadden v. Watson, 51 Ariz. 110, 113,
74 P.2d 1181, 1182 (1938); Cosper v. Valley Bank, 28 Ariz. 373, 382, 237 P. 175, 178
(1925); Hofman Co. v. Meisner, 17 Ariz. App. 263, -, 497 P.2d 83, 88 (1972); Garrett v.
Shannon, 13 Ariz. App. 382, -, 476 P.2d 538, 539 (1972).
126. ARuz. REV. STAT. § 25-215D (1976).
127. Id.
128. Comment, The Implications of the New Community Property Laws for
Creditors'Remedies and Bankruptcy, 63 CALIF. L. REV. 1610, 1650 n.223 (1975).
129. An Arizona court has held that section 25-215 B, which makes a portion of
the community property liable for "premarital separate debts or other liabilities of
a spouse" does not include separate, postnuptial debts and liabilities. Schilling v.
Embree, 118 Ariz. App. 236, -, 575 P.2d 1262, 1265 (1977).
130. ARIZ. REV. STAT. § 25-215A (1976).
131. Reckart v. Avra Valley Air, Inc., 19 Ariz. App. 538, -, 509 P.2d 231, 232-33
(1973); Garrett v. Shannon, 13 Ariz. App. 332, -, 476 P.2d 538, 539 (1972); Simpson v.
Shaw, 71 Ariz. 293, -, 226 P.2d 557, 560 (1961); McFadden v. Watson, 51 Ariz. 110, 114,
74 P.2d 1181, 1182 (1938).
132. Schilling v. Embree, 118 Ariz. App. 236, -, 575 P.2d 1262, 1265 (1977).
133. W. DE FuNIAK & M. VAUGHN, supra note 8, at 387.
134. CAL. CIv. CODE § 5116 (West Supp. 1979).
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[Vol. 13
separate property of the contracting spouse is also liable for such
debts; 135 but not the separate property of the noncontracting
spouse. 36 While California does not distinguish between separate
and community debts, it does recognize separate and community
torts. A community tort occurs when a spouse is performing an
activity for the benefit of the community, 137 while a separate tort
occurs when the tort-feasor is not acting in the community interest.1 38 Regardless of the separate or community nature of the tort,
both the community property and the separate property of the
tort-feasor-spouse are liable. The distinction arises only in the
case of a community tort: the liability is first satisfied out of community property and then the tort-feasor-spouse's separate property. 13 9 In the case of a separate tort, the priority of liability is
40
reversed.
4
Texas does not recognize either separate/community debts' '
or separate/community torts. With respect to debts arising during
marriage, the community property subject to the contracting
spouse's sole or joint management control and disposition' 42 is liable
43
together with the contracting spouse's separate property.
The noncontracting spouse's separate property'" and the community property subject to that spouse's sole management, control
and disposition are not liable for such debts. 45 With respect to the
146
torts of either spouse, the entire community property is liable,
together with the separate property of the tortfeasor-spouse. The
non-tort-feasor-spouse's separate property is not liable. 147
135. Id. § 5121. With respect to certain secured debts and obligations created on
or after January 1, 1975, the separate property is not liable unless the spouse expressly assents in writing thereto. Id. § 5123(b). For similar debts and obligations
created prior to January 1, 1975, a similar provision applies to the wife only. Id.
§ 5123(a).
136. Id. § 5121. Separate property of a spouse is liable for debts contracted by
either for the necessities of life. Id.
137. Id.§5122(b)(1).
138.
139.
Id. § 5122(b)(2).
Id. § 5122(b)(1).
140. Id.§ 5122(b)(2).
141. It is possible in Texas, however, for the spouse and the creditor to contract
so that the creditor will look only to separate property of contracting party to satisfy
an obligation created after marriage and thereby create a separate debt. See, e.g.,
Ray v. United States, 385 F. Supp. 372, 377 (S.D. Tex. 1974), affid, 538 F.2d 1228 (5th
Cir. 1976).
142. Generally this includes that spouse's personal earnings, revenue from separate property, recoveries for personal injuries and increase and mutations and revenue thereon. TEx. FAM. CODE ANN. tit. 1, § 5.22 (Vernon 1975).
143. Id. § 5.61(c).
144. Id. § 5.61(a).
145. Id.§ 5.61(b) (2).
146. Id. § 5.61(d).
147. Id. § 5.61(a).
PROPERTY
1979]
The common-law approach as modified by the various Married
Women's Property Acts is simpler than the community property
approach. Except for necessities purchased on credit,148 the Married Women's Property Acts generally relieve the husband and his
separate property of liability for his wife's debts. 149 Similarly, a
husband and his separate property are not liable for a wife's postnuptial torts unless he is otherwise liable by law. 5 0 A wife and her
separate property, of course, are liable for her postnuptial debts
and torts.' 5 '
Conversely, unless otherwise liable, the wife's separate prop1 52
erty is not liable for the husband's postnuptial debts or torts.
DIVORCE
In General
In the eight community property states, the division of the
marital property on dissolution of marriage depends initially on
whether the property is classified as separate or community property. Except in Washington, a spouse generally retains ownership
of his or her separate property on divorce. 5 3 It is only the community property of the spouses that is divisible. In Washington both
separate and community property is susceptible to division by the
court.
15 4
With respect to how the community property is divided on divorce, the laws of the states fall in two broad categories. California
and Louisiana provide by statute that, with minor exceptions, the
division of the community property is to be equal. 5 5 The remaining community states legislatively provide that the court has discretionary power to divide the community property. The states
provide differently worded guidelines for the courts to follow in the
exercise of their discretion. These include directions for the court
148.
149.
150.
3 C. VERNIER, supra note 48, at 47, 49.
Id. at 36.
H. CLARK, LAw OF DOMESTIC RELATIONS 229 (1968).
151. Id.; 3 C. VERNIER, supra note 48, at 34.
152. 3 C. VERNIER, supra note 48, at 100. If, however, the husband has transferred property to his wife to defraud creditors, the property can still be attached by
the husband's creditors. See, e.g., McMurray v. McMurray, 410 S.W. 2d 139, 141 (Ky.
1966); H.A. Thompson & Sons, Inc. v. Hahn, 135 N.W. 2d 166, 174 (N.D. 1965).
153. See, e.g., Citizens Nat'l Trust & Say. Bank v. Hawkins, 87 Cal. App. 2d 835,-,
197 P.2d 385, 389 (Ct. App. 1948); Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 141-42
(Tex. 1977); ARiz. REV. STAT. § 25-318 (1976). Some states allow a spouse's separate
property to be used for the support of the other spouse or children. See, e.g., Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 139 (Tex. 1977); IDAHO CODE § 32-708 (1963);
NEV. REV. STAT. 125-150-3 (1975).
154.
155.
WASH. REV. CODE ANN. § 26.08.110 (1961).
CAL. CrV. CODE § 4800 (West 1970); LA. Crv. CODE ANN. art. 2406 (West 1972).
CREIGHTON LAW REVIEW
[Vol. 13
to divide the community property "equitably," 156 "in a manner that
the court deems just and right,"15 7 "as shall appear just and equitable, ' 158 or as the court deems "just."'15 9 Generally, the court is
given a wide degree of discretion in making the division of community property on dissolution of marriage. 160 The courts usually
consider a number of factors in determining the equitable division.
These factors include: the origins of the property; 16 1 the conditions
of the parties prior to divorce, including fault of one or both par162
ties, if applicable under state law; future earning capabilities;
contribution of one spouse to the increased value of property
awarded or owned by the other spouse; 163 the children of the marriage and their needs; 164 and the circumstances of the parties after
the divorce, including financial condition, 165 age, prospects for future employment or earnings, and physical condition. 66 Where
discretion is permitted, the division of community property does
not have to be equal as long as it is not so disproportionate to be
inequitable. 67 Even though equal division is not required, courts
seem to use the equal division of the community property as a
starting point 68 or as the norm. 169 In the majority of states, the
trend is for courts to divide the community property equally between the spouses with a substantially equal division of community property being the rule rather than the exception.
This equal division of community property would seem to be
156.
157.
ARIz. REV. STAT. § 25-318 (1976).
TEX. FAM. CODE ANN. tit. 1, § 3.63 (Vernon 1975).
158. WASH. REV. STAT. ANN. § 26.08.110 (1961).
159. IDAHO CODE § 32-712 (1963).
160. Wick v. Wick, 107 Ariz. 382, -, 489 P.2d 19, 22 (1971); Wine v. Wine, 14 Ariz.
App. 103, -, 480 P.2d 1020, 1022 (1971); Simplot v. Simplot, 96 Idaho 239, -, 526 P.2d
844, 850 (1974); Hooker v. Hooker, 95 Idaho 518, -, 511 P.2d 800, 804 (1972); Cockerham v. Cockerham, 527 S.W.2d 162, 173 (Tex. 1975); Bell v. Bell, 513 S.W.2d 20, 22
(Tex. 1974); Baker v. Baker, 80 Wash. 2d 736, -, 498 P.2d 315, 321 (1972); Rogstad v.
Rogstad, 74 Wash. 2d 736, -, 446 P.2d 340, 341 (1968).
161. Van Kleffens v. Van Kleffens, 150 Wash. 685,-, 274 P. 708, 708 (1929); WASH.
REV. STAT. ANN. § 26.08.110 (1961).
162. Stacy v. Stacy, 68 Wash. 2d 640, -, 414 P.2d 791, 794 (1966).
163. Pollock v. Pollock, 7 Wash. App. 394, -, 499 P.2d 231, 235 (1972).
164. TEX. FAM. CODE ANN. tit. 1, § 3.63 (Vernon 1975).
165. Friedland v. Friedlander, 80 Wash. 2d 293,-, 494 P.2d 208, 215 (1972); WASH.
REV. STAT. ANN. § 26.08.110 (1961).
166. Shay v. Shay, 33 Wash. 2d 408, -, 205 P.2d 901, 902 (1949); Guarino v. Guarino, 29 Wash. 2d 314, -, 186 P.2d 927, 934 (1947).
167. Calderon v. Calderon, 9 Ariz. App. 538, -, 454 P.2d 586, 589 (1969); Nace v.
Nace, 104 Ariz. 20, -, 448 P.2d 76, 79 (1968); Cearley v. Cearley, 536 S.W.2d 96, 99
(Tex. 1976); Trader v. Trader, 531 S.W.2d 189, 190 (Tex. 1975).
168. Ivancovitch v. Ivancovitch, 24 Ariz. App. 592, -, 540 P.2d 718, 721 (1975);
Hatch v. Hatch, 23 Ariz. App. 451, -, 534 P.2d 295, 298 (1975).
169. Guy v. Guy, 98 Idaho 205, -, 560 P.2d 876, 880 (1977); Hatch v. Hatch, 113
Ariz. 130, -, 547 P.2d 1044, 1046-48 (1976).
1979]
PROPERTY
appropriate. Such an approach is consistent with the community
system's philosophy that each spouse contributes equally to the
marriage partnership. The equal division of community property
is particularly appropriate in those community states that provide
1 70
for "no-fault" divorce.
Although there are exceptions, 17' the common-law states can
be divided into two classes with respect to the division of property
on divorce. First, a minority of common-law states provide that on
dissolution of the marriage only jointly held property is subject to
division between the spouses unless a spouse is able to show that
he or she has an equitable title or right to the property owned by
the other spouse or can establish a basis for imposing a constructive trust on the other spouse's property. 17 2 This is a difficult burden and, in the case of a nonwage earning or underemployed
spouse with no real opportunity to acquire property, this approach
is clearly discriminatory and places the spouse at a substantial disadvantage.
The majority of common-law states provide that the division of
the spouses' property on dissolution of the marriage is to be based
on equitable principles without regard to which spouse actually
owns the property. The various common-law statutes give the
courts wide discretion to make an equitable division. The states
which provide for an equitable division of property can be classified into three groups with respect to the divisible property.
Some jurisdictions provide that all property owned by the
spouses, regardless of the time and manner of acquisition, is subject to division by the court in a proceeding to dissolve the marriage. 73 Thus, ownership of property acquired by the spouses
prior to marriage as well as property which they acquire by gift,
devise, or descent during the marriage is subject to divestment in
the court's equitable division of the property.
In a second group of jurisdictions, all property acquired during
the marriage is susceptible to division on divorce. 7 4 This ap170. McKnight, Division of Texas MaritalProperty on Divorce, 8 ST. MARY's L.J.
413, 435 (1976).
171. Arkansas, for example, provides on dissolution of marriage that the wife is
entitled to one-third of the personal property owned by her husband and an interest
similar to dower wherein a wife is entitled to a life interest in one-third of the real
property of which he was seized at any time during marriage. ARK. STAT. ANN. § 341214 (1962).
172. Foster & Freed, supra note 47, at 171.
173. E.g., UNIFORM MARRIAGE AND DIVORCE ACT § 307; CONN. GEN. STAT. ANN.
§ 46-51 (1978); HAwAn REV. STAT. § 580-47 (1976); IND. CODE ANN. § 31-1-11.5-11
(Supp. 1978).
174. E.g., N.J. STAT. ANN. § 2A:34-23 (West. Supp. 1979).
CREIGHTON LAW REVIEW
[Vol. 13
proach also subjects property acquired during marriage by gift, de175
vice, or descent to judicial division.
A third group of jurisdictions provide that with certain exceptions, 176 most notably property acquired by gift, devise, or descent, 7 7 the courts can only divide property acquired during
marriage. In these jurisdictions property acquired by any means
prior to marriage and acquired during the marriage by gift, devise,
and descent is retained by the owning spouse and is not subject to
divestment in a divorce action.
A Comparison of the Property Eligiblefor Division Under the
Two Systems
Seven of the eight community property states allow each
spouse to retain on divorce property owned prior to marriage and
acquired thereafter by gift, devise or descent. Only community
property is subject to division. The states, however, are not uniform in their definitions of community property. Texas, Louisiana,
and Idaho provide that the income from a spouse's separate property is community property and therefore is subject to division by
the courts. The other five community property states provide that
the income from a spouse's separate property remains the separate property of that spouse. In four of these five states, such income is excluded from the property eligible for the court's division.
In some cases this can substantially reduce the amount of property to be divided, and can result in a substantially unfair advantage to the spouse owning the separate income producing
78
property.
In common-law states the extent to which a spouse's property
is susceptible to division depends on the law of the particular
state. If the state falls within one of the common-law jurisdictions
which directs that the proprty owned by the spouses prior to mar175. Painter v. Painter, 65 N.J., 196, -, 320 A.2d 484, 494 (1974).
176. The exceptions found in Section 307 of the superceded Uniform Marriage
and Divorce Act are typical. These exceptions include: (1) property acquired by
gift, bequest, devise or descent; (2) property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, bequest,
devise or descent; (3) property acquired by a spouse after a decree of legal separation; (4) property excluded by valid agreement of the parties; and (5) the increase
in value of property acquired before marriage. Interestingly, exception number (5),
above, excludes only increase in value from property acquired before marriage
rather than also including the increase in value of property described in the preceding four exceptions. It would seem for the sake of consistency that these should
have been included. UNIFORM MARRIAGE AND DIVORCE ACT § 307 (superceded 1973).
177. UNIFORM MARRIAGE AND DIVORCE ACT § 307 (superceded 1973).
178. E.g., Beam v. Bank of America, 6 Cal. 3d 12,-, 490 P.2d 257, 265, 98 Cal. Rptr.
137, 145 (1971).
19791
PROPERTY
riage or acquired during marriage by gift, devise, or descent is to
be divided equitably by the court on divorce, then the pool of eligible property which is subject to the court's division can be substantially larger than in the community property system. These
states, however, generally consider the time and manner of acquisition of the property as a factor in determining an equitable division. While time and manner of acquisition are not determinative,
they seem to be given great weight by the courts. Consideration of
these factors can, of course, exclude property acquired outside the
marital relationship from the property eligible for division. The jurisdictions which permit property acquired either prior to marriage or thereafter by gift, devise, or descent to be taken from the
owning spouse and vested in the other spouse make the mere fact
of marriage and divorce a property acquiring transaction. Such
property comes to the owning spouse regardless of the marriage
relationship and is not connected with that relationship. As the
joint effort of the spouses is not responsible for its acquisition,
such property should not be subject to divesture at divorce. Each
spouse should be entitled to share only that property which is acquired by the joint efforts of the spouses during marriage.
The aggregate property subject to division in the common-law
states which do not divide property acquired outside the marital
relationship is similar to the property which is divisible in the community property system.
There is one notable exception. Under the common-law approach, while the property acquired prior to marriage and thereafter by gift, devise, or descent is not subject to division, the income
from such property is divisible by the courts. The result is the
same in Texas, Louisiana, and Idaho where the income from such
separate property would be community property. In California,
Nevada, New Mexico, and Arizona, such income would be separate
property and not subject to division on divorce.
Under either system, the most property eligible for division is
found in the common-law states which allow division of all property, whenever and however acquired. The most restrictive pool of
eligible property is found in those community property states
which treat income from separate property as separate property
and allow only the community property of the spouses to be divided on divorce. Neither approach is satisfactory. The property
eligible for division should consist solely of the property acquired
during marriage which is related to the activities of the marital relationship. Courts should not be empowered to divest the property
of a spouse acquired prior to marriage or thereafter by gift, devise,
CREIGHTON LAW REVIEW
[Vol. 13
or descent precisely because the other spouse in no way contributed to its acquisition.
Common-Law Equitable Division Compared with Community
Property EquitableDivision
In community property states where courts are to make an equitable division, the factors considered by the courts are similar to
those considered in common-law states. To the extent that the two
systems apply similar factors and consider the same types of property, there would appear to be little difference between them. For
example, if both a community and common-law state restore a
spouse's separate property and divide only the community property the division appears similar if not identical. From the nonworking spouse's standpoint, however, it would be preferable to
have that spouse's contribution result, as in the community property system, in a present, vested interest in one-half the community property subject to partial divestment by the court 179 rather
than have such spouse's contributions result in only an inchoate
right which may be bestowed on the spouse by the divorce
court.
180
Common-Law Equitable Division Compared with Community
PropertyEqual Division
The majority of the community states either by legislation or
judicial decision tend to divide the community property equally
between the spouses. To what extent is the common-law equitable
division of property moving toward results similar to those
reached in the community property states that equally divide the
community property?
What is the equitable division of property on divorce, of
course, varies, but there does seem to be a recent movement in the
common-law states toward a more equal division of the property.18 1 There are two developing trends in some common-law jurisdictions which are moving those states toward an approach
similar to that taken by the community property states.
First, some courts are providing that household goods and furnishings are presumed to be owned jointly by the spouses rather
than by the acquiring spouse when the items have been jointly
179. See Hatch v. Hatch, 113 Ariz. 130, -, 547 P.2d 1044, 1041 (1978) (where the
court held that even partial divestment of a spouse's vested property interest in
community property was an abuse of discretion by the trial court).
180. Imel v. United States, 184 Colo. 1, -, 517 P.2d 1331, 1335 (1974).
181. Kulzer, Law and the Housewife: Property,Divorce and Death, 28 U. FLA. L.
REV. 1, 7 (1975).
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PROPERTY
used and possessed by the spouses. 82 Second, legislatures and
courts of common-law states are beginning to specifically consider
the nonmonetary contributions of a spouse as a factor in the equitable division of property on divorce. This trend is taking two
forms. First, statutes are providing that the contributions of a
spouse as a homemaker 83 or to the family unit is a factor to be
considered in making an equitable division of the property. Although inherent in the community property system, the consideration of this factor is new to the common law. 184 Consideration of
the homemaker's contributions is legislatively required in only a
few of the common-law jurisdictions, 185 but the number is growing.
Second, even in the absence of a legislative mandate, some courts
in common-law states are giving consideration to the nonmonetary
contributions of a spouse. 86 Previously in these jurisdictions, and
presently in the other common-law jurisdictions, while consideration of the spouse's contribution to the acquisition and accumulation of property was a factor in determining the equitable division
on divorce, the contribution of the parties was limited to the capital or labor directly resulting in the acquisition of the property.
Consideration of homemaking and other family duties allows for
recognition of the contributions of the nonworking spouse and
brings states that recognize the factor closer to the position of the
community system. Even when this factor is recognized, however,
there is not equality. In the common-law states where this factor
is relevant, it is only one of the many factors considered. And, the
possibility exists that the court in the exercise of its discretion will
fail to give the factor proper weight. Also, the homemaker's interest in any property remains only an inchoate expectancy. 187 In the
182. Di Florido v. Di Florido, 459 Pa. 641, -, 331 A.2d 174, 179-80 (1975); cf. Du
Pont v. Du Pont, 33 Del. Ch. 471, -, 98 A.2d 493, 496 (1953) (separate maintenance
action); In Re Estate of Smith, 90 Ill. App. 2d 305, -, 232 N.E.2d 310, 311 (1967)
(death of a spouse).
183. Although the homemaker has traditionally been the wife, the contributions
of a househusband have been considered. In Re Marriage of Patus, - Ind. App. -,
-,
372 N.E.2d 493, 495-96 (1978).
184. UNIFORM MARRIAGE AND DIVORCE ACT § 307, Commissioner's Comment
(1979).
185. COLO. REV. STAT. § 14-10-113 (1973); ILL. ANN. STAT. ch. 40, § 503 (SmithHurd Supp. 1979); IND. CODE ANN. § 31-1-11.5-11 (Burns Supp. 1978); Ky. REV. STAT.
ANN. § 403.190 (Baldwin 1975).
186. Some courts, while not explicitly considering the factor of the contributions
of the homemaker, wife and mother, indicate that these contributions are not being
ignored. E.g. Du Pont v. Du , Pont, 33 Del. Ch. 571, -, 98 A.2d 493, 496 (1953); Beggs
v. Beggs, 479 S.W.2d 598, 601 (1972); Painter v. Painter, 65 N.J. 196, -, 320 A.2d 484,
492 (1974); De Florido v. De Florido, 459 Pa. 641,-, 331 A.2d 174, 179 (1975). Contra
Crenshaw v. Crenshaw, 45 Ill. App. 3d 880,
187.
-,
Imel v. United States, 187 Colo. 1, -,
360 N.W.2d 576, 579 (1979).
517 P.2d 1331, 1335 (1974).
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community system the nonworking spouse's contribution is recognized by vesting in that spouse a present one-half interest in the
property and on divorce the spouse is entitled to receive that onehalf interest.
Further, although each case must be decided on its own facts,
nonworking spouses, usually wives, appear to receive more equal
property division from the community property system than they
do from the common-law system. This seems particularly true
when the common-law jurisdiction does not consider the contributions of the homemaker, wife, and mother. While there certainly
are equal divisions of property between the spouses in commonlaw jurisdictions,18 8 the norm appears to accord the wife less than
equal treatment. 189
THE EFFECT OF DEATH
In the community property system, the death of either spouse
terminates not only the marriage but the community property relationship of the spouses. 190 The survivor's separate property is unaffected by the death' 9 1 and the survivor retains ownership of an
undivided one-half of the community property, not as an heir of
the deceased spouse, but because that ownership had been vested
in the survivor since the property was originally acquired. 192 The
survivor's one-half interest therein becomes the survivor's separate property.
In all of the community property states, the deceased spouse
has testamentary dispositive power over only his or her separate
property and over his or her one-half interest in the community
property. 19 3 If a spouse should attempt to make a testamentary
188. E.g., Rice v. Rice, - Mass. -, -, 361 N.E.2d 1305, 1308 (1977).
189. Junker v. Junker, 188 Neb. 555, 560, 198 N.W.2d 189, 192 (1972) ("awards...
vary between one-third to one-half the value of the property involved"); Williams v.
Williams, 44 Wis. 2d 651, -, 171 N.W.2d 902, 907 (1969) ('"The general, though clearly
not inflexible rule is that one-third of the marital estate is a liberal allowance for the
wife.. ."). For an article supporting the equal division of marital property acquired
by joint effort, see Foster & Freed, supra note 47, at 176.
190. W. DE FUNIAK & M. VAUGHN, supra note 8, at 453.
191. However, in Texas, Louisiana and Idaho, the income from the decedent's or
survivor's separate property is no longer community property. Instead it belongs
entirely to the representative of the decedent's estate or the survivor.
192. La Tourette v. La Tourette, 15 Ariz. 200, -, 137 P. 426, 429 (1914). Jones v.
State, 5 S.W.2d 973, 975 (Tex. Crim. 1928); Slavin v. Greever, 209 S.W. 479, 485 (Tex.
1919).
193. E.g., Singleton v. St. Louis Union Trust Co., 191 S.W.2d 143, 147 (Tex. Ct.
App. 1945); Langenhennig v. Hohmann, 163 S.W.2d 402, 406 (Tex. Ct. App. 1942);
ARIZ. REV. STAT. § 14-3101-A (1975); CAL. PROB. CODE § 201; IDAHO CODE § 15-3-101
(1979); LA. Crv. CODE ANN. art. 1639 (West 1952); NEV. REV. STAT. § 133.030 (1973);
N.M. STAT. ANN. § 29-1-9 (Supp. 1975). Prior to 1973, New Mexico law provided that
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PROPERTY
disposition of the surviving spouse's interest in the community
property, 194 such disposition is void unless the surviving spouse
consents thereto after the death. 195 The community property
states do not recognize dower or curtesy nor do they have any
"forced heirship" or elective share statutes which attempt to guarantee a certain interest in the decedent's estate to the surviving
spouse. 196 With minor exceptions, 97 the deceased is free to make
testamentary disposition of his or her separate property and of his
or her one-half interest in community property to whomever he
198
chooses.
The death of a spouse also affects the management and control
of community property. While the surviving spouse retains the
right to manage and control his or her separate property, the community property states take different approaches to the postmortem management and control of the community property. Several states allow a surviving spouse, if the statutory requirements
on the wife's death, survived by her husband, that her one-half of the community
property vested in her husband and she had no testamentary power of disposition
over her interest in the community property. N.M. STAT. ANN. § 29-1-8 (1954) (repealed 1973).
194. Marshall v. Land, 413 S.W.2d 820, 823 (Tex. Ct. App. 1967), affd and reformed, 426 S.W.2d 841 (Tex. 1968); Langehennig v. Hohmann, 163 S.W.2d 402, 406
(Tex. Ct. App. 1942); WASH. REV. CODE ANN. § 26.16.030(1) (Supp. 1978).
195. Marshall v. Land, 413 S.W.2d 820, 823 (Tex. Ct. App. 1967), affd and modified, 426 S.W.2d 841 (Tex. 1968); CAL. PROB. CODE § 201.8 (West Supp. 1978). If a
deceased spouse makes a testamentary disposition of both halves of the community property, the survivor is put to an election to either take under the will or to
forego the benefits under the will and retain ownership of one-half of the community property.
196. In Re MacKevitch's Estate, 93 Ariz. 129, -, 379 P.2d 119, 122 (1963); Singleton v. St. Louis Union Trust Co., 191 S.W.2d 143, 148 (Tex. Ct. App. 1946). California
and Idaho have statutes which protect the surviving spouse by giving the survivor a
one-half interest in certain property acquired by the deceased spouse during marriage, outside the state, that would have been community property if the decedent
had been domiciled in the state. CAL. PROB. CODE § 201.5 (West Supp. 1978); IDAHO
CODE § 15-2-201 (1979). Louisiana provides that in certain circumstances, if the decedent died rich leaving the survivor in necessitous circumstances, the survivor is
entitled to a portion of the decedent's estate. LA. CIv. CODE ANN. art. 2382 (West
1973). At one time California had a statute which provided that if the estate of the
deceased husband did not exceed $1,500 and if he left a widow, that she was entitled
to the entire estate. See In Re Miller's Estate, 158 Cal. 420, -, 111 P.255, 256 (1910).
197. These exceptions relate to homestead, widow's allowance and family allowance. In New Mexico, the decedent's personal property which is exempt from execution automatically vests in the surviving spouse, regardless of whether such
property was community or separate prior to death. N.M. STAT. ANN. § 29-1-11
(Supp. 1975).
198. If the decedent takes advantage of this freedom of testation and does not
devise or bequeath his interest in the,community property to his spouse, then the
legatee and the surviving spouse own such property as tenants in common. Lawson
v. Ridgeway, 72 Ariz. 253, -, 233 P.2d 459, 466-67 (1951); Reed v. Nevins, 77 N.M. 587,
-, 425 P.2d 813, 816 (1967).
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are met, to manage the entire community property. 199 Absent
such a statute or compliance therewith, the extent to which the
surviving spouse can manage and control the community property
varies considerably from state to state. Nevada takes the position
that the surviving spouse is entitled to manage and control his or
her one-half of the community property and the decedent's onehalf thereof is to be administered by the personal representative.20 0 California provides that the personal representative is to
administer the decedent's interest in the community property only
with respect to such community property that does not pass unqualifiedly to the surviving spouse. 20 1 Other states provide that
the extent to which the personal representative has the power to
administer community property is a function of the decedent's
right to manage that property. Thus, in Texas the personal representative is entitled to administer the community property which
was subject to the decedent's sole or joint management and control prior to death. 20 2 In Idaho in addition to the right of the personal representative to administer the community property
subject to the decedent's control prior to death, there is the right to
administer the remainder of the community property if necessary
to carry out the provisions of decedent's will. 20 3 Still other states
give the personal representative a limited right to manage the en204
tire community property.
The death of a spouse residing in a common-law state terminates the marriage just as it does in the community property state.
But instead of terminating a property relationship as in a community state, the spouse's death gives the surviving spouse certain
rights in the property of the deceased spouse. These created property rights fall within three broad categories: exempt property and
allowances; 20 5 dower or curtesy and; elective share of the surviving
spouse. The availability of these property rights to the surviving
spouse depends on the particular state law involved.
The exempt property and allowances which the common law
provides are modest and are also generally provided by the community property states. The availability of dower and curtesy is
199. E.g., CAL. PROB. CODE § 203 (West Supp. 1978); TEX. PROB. CODE ANN. tit.
17A, § 177(a) (Vernon Supp. 1978); WASH. REV. STAT. ANN. § 11.28.030 (1967).
200.
NEV. REV. STAT. § 123.250 (1977).
201. CAL. PROB. CODE § 204 (West Supp. 1978).
202. TEX. PROB. CODE ANN., tit. 17A, § 177(b) (Vernon Supp. 1978).
203. IDAHO CODE § 15-3-101 (1979).
204. ARiz. REV. STAT. § 14-3101-A (Supp. 1978).
205. The category of exempt property and allowances would include the right of
the survivor to homestead or an allowance in heir thereof, a widow or widower's
allowance and a family allowance.
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declining 20 6 and some states which continue to recognize these interests also give the surviving spouse the right to choose between
dower and an elective share. 20 7 For these reasons and because of
the often greater importance of the elective share, the remainder
of the discussion will focus on the elective share of the surviving
spouse.
There are two types of elective share statutes. Both allow the
surviving spouse to reject the provisions in his or her favor, if any,
contained in the will of the deceased spouse; and instead, to elect
to take outright a statutory interest in the decedent's estate. The
interest is usually one-half, one-third, or the spouse's intestate
share and may depend on the number of decedent's children who
also survive. The two types of statutes are, however, very different
with respect to their manner of determining the property to which
the survivor's interest attaches.
One type of statute provides that the surviving spouse is only
entitled to share in the property of the deceased spouse that would
have passed under the laws of descent and distribution. 20 8 Under
this type of statute, the surviving spouse is generally allowed to
share in only the real and personal property owned by the decedent at death. Consequently, it is possible for the protected interest of the surviving spouse to be easily defeated by the use of
various will substitutes which remove assets from the decedent's
probate estate. 20 9 These nontestamentary transfers, unless they
were illusory or a fraud on the survivor, 210 can decimate the survivor's share. For example, under this type of elective share statute
a spouse could make an outright gift or gift in trust to a third party
or create a joint tenancy with right of survivorship with the third
party and thereby defeat the right of the surviving spouse to share
in such property. Also a spouse could establish a revocable or irrevocable inter vivos trust and retain the right to the income therefrom and the enjoyment of the principal. At death, the trust estate
would pass to a designated beneficiary and under this type of elective share statute the surviving spouse would not be entitled to an
206. Georgia, Illinois, Kentucky, Florida, and Tennessee have recently abolished dower. Since personalty has generally superceded land as the measure of
wealth, some states have also given the surviving spouse an outright share of the
decedent's personalty. I Am. L. OF PROP., supra note 24, at 632.
207. E.g., OHIO REV. CODE ANN. §§ 2103.02, .39 (1978).
208. E.g., IND. CODE ANN. § 29-1-3-1 (Burns 1972).
209. See generally W. MACDONALD, FRAUD ON THE WIDOW'S SHARE 156 (1960);
Sykes, Inter Vivos Transfers in Violatioh of the Rights of Surviving Spouses, 10 MD.
L. REv. 1, 9-10 (1949); Note, The Effect of Forced Share Statutes on Inter Vivos Conveyances of Personalty, 33 IND. L.J. 377, 378 (1958).
210. Newman v. Dore, 275 N.Y. 371, -, 9 N.E.2d 966, 967 (1937).
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elective share in any of the trust assets. 21'
By limiting the survivor's elective share to the property that
would have passed by intestacy and thereby permitting nontestamentary transfers to escape the survivors elective share, the purpose behind these statutes can easily be defeated. By ignoring will
substitutes, these statutes do not take into account the property
that passed to the surviving spouse because of nontestamentary
transfers. No effort is made to reduce the amount of property to
which the surviving spouse is entitled because of property that the
deceased spouse transferred to the survivor by nontestamentary
means.
These inconsistencies and abuses, potential and practiced, resulted in the development of another type of elective share statute.
There are important distinctions between the two types of statutes. First, the latter type does not limit the elective share to only
the property that would have passed by the laws of descent and
distribution. It accomplishes this by allowing the surviving
spouse's elective share to be calculated on an "augmented estate. '2 12 Basically, the augmented estate means the decedent's net
probate estate 2 13 plus: property transferred by the decedent inter
vivos, during marriage to anyone other than the surviving spouse
and without adequate consideration to the extent that such transfers are essentially will substitutes 21 4 whereby the transferror during his or her lifetime continues to control and benefit from the
property; and property which was derived from the decedent and
owned by the surviving spouse at the date of decedent's death or
215
given away by the surviving spouse in a will substitute fashion.
The second distinction between the two types of statutes is
that the latter type credits against the surviving spouse's elective
share certain property which is part of the augmented estate and is
211. See Bensing, Inter Vivos Trusts and the Election Rights of a Surviving
Spouse, 42 Ky.L. REV. 616, 616 (1954); Note, Inter Vivos Trusts vs. The Right of Election Given Surviving Spouses, 40 GEo. L. REV. 109, 111 (1951).
212. UNIFORM PROBATE CODE § 2-202.
213. That is, the probate estate reduced by funeral and administration expenses, homestead allowance, family allowances and exemptions, and enforceable
claims. Id.
214. These include: (1) transfers whereby the decedent retained at the time of
his death the possession or enjoyment of, or the right of income from, the property;
(2) transfers to the extent the decedent retained at the time of his death a power,
either alone or in conjunction with any other person, to revoke or to consume, invade or dispose of the principal for his or her own benefit; (3) transfers whereby
property is held at the time of decedent's death by decedent and another with right
of survivorship; and (4) transfers made to a donee within two years of death of the
decedent to the extent that the aggregate transfers to any one donee in either of the
years exceed $3,000.00. Id.
215. Id.
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received by the surviving spouse. 2 16
The effect of the provision of this type of elective share statute
is two-fold: first, it makes it considerably more difficult for a
spouse to defeat the survivor's elective share; 217 and, second, it
takes into account property received by the surviving spouse
outside of probate in arriving at the survivor's elective share.
With an understanding of the effect of death on the marital
property rights in both the community property and common-law
system, it is possible to compare the two systems. In order to
make the comparison more meaningful, the community system
will be compared with the common-law elective share approach
used by the Uniform Probate Code. 218 For simplicity, the comparison will assume a marriage whereby one spouse is wealthier than
the other spouse. The discussion will be divided into two categories, death of the wealthy spouse and death of the nonwealthy
spouse.
Death of the Wealthy Spouse
Upon the death of the wealthy spouse domiciled in a commonlaw property state with the Uniform Probate Code in effect, the
surviving spouse would be entitled to one-third of the augmented
estate, if he or she so elected. The survivor would be entitled to
the same elective share regardless of the duration of the marriage
and regardless of the time and manner in which the wealth was
acquired. These matters are irrelevant under the elective share
approach. Thus, given an augmented estate, the spouse's elective
share would be the same regardless of whether the marriage had
lasted only a short time and all the wealth had been acquired prior
to marriage.
.The time and manner of acquisition of the property is vital to
the community system. If the property is acquired by the deceased spouse prior to marriage or subsequent to marriage by gift,
devise, or descent, then such property is the separate property of
the decedent and the survivor is entitled to none, except for possible rights to homestead and allowances. 219 If, on the other hand,
216.
217.
Id. §§ 2-202(2), -207 (a).
Kulzer, supra note 181, at 37.
218.
UNIFORM PROBATE CODE § 2-201 (1977).
219. While the law does not entitle the survivor to any of the separate property
of the deceased spouse, the provisions of the Internal Revenue Code relating to the
estate tax marital deduction may cause the deceased spouse to devise some property, either separate or community, to the survivor in order to satisfy the marital
deductions and thereby decrease estate taxes. I.R.C. § 2056. This would likewise be
true in the common law states.
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the property is acquired during marriage so as to be community
property then the survivor is entitled to retain his or her one-half
interest therein, and the decedent is free of dispositive restrictions
as to the other one-half of the community property. Consequently,
the time and manner of acquisition of property is an integral part
of the community system. Thus, the longer the marriage, the
greater the opportunity to acquire wealth which would be community property. Since the surviving spouse is entitled to retain onehalf of the community property, the amount of property belonging
to the surviving spouse is a function of the length of the marriage.
It seems that it should be the policy of the elective share statutes to take into consideration the duration of the marriage and
the time and manner of property acquisition. If the surviving
spouse is to share in the estate of the deceased spouse, the survivor does so explicitly because of the marriage relationship. It
would seem, however, that a spouse should share in the estate of
the deceased spouse because of the survivor's contributions to the
marriage and because of foregone opportunities caused by marital
duties. These considerations do not apply to property owned by
the spouse prior to marriage or acquired thereafter by gift, devise,
and descent. Since such property was not acquired because of the
performance of marital duties and the nonacquiring spouse did not
contribute to their acquisition, it would seem that they should not
be available for the survivor to share. A surviving spouse should
only be entitled to share in property acquired during marriage by
means other than gift, devise, and descent.
By making the factors of duration of the marriage and time
and manner of acquisition of the property a function of the distribtuion of property on the death of a spouse, the community system
is more consistent with the correct policy behind a sharing of the
spouse's property at death.
The majority of the community property states provide that on
divorce, each spouse retains his or her separate property and onehalf of the community property. This is analogous to the division
of separate and community property on the death of a spouse.
Thus, on both divorce and death, a spouse or the deceased
spouse's personal representative, is entitled to his or her separate
property and one-half of the community property.
Under the common-law system, the results differ depending on
whether the marriage was dissolved by divorce or by death. On
divorce the court, in its discretion, is to make a fair and equitable
division of the property. In exercising its discretion the court considers as relevant the duration of the marriage and the time and
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manner of acquisition of the property. 220 These factors are not
considered when the property is divided on the death of a spouse.
At death the survivor is entitled to receive a given amount fixed by
statute. Particularly in those states that have "no fault" divorce
laws, it would seem that these factors would be just as relevant on
221
death as they are on divorce.
An additional distinction between the two systems is that in
the community property states a spouse has a vested, present interest in one-half the community property and on the death of the
other spouse, the survivor is automatically entitled thereto without
further action on the part of the survivor. 222 Under the commonlaw system, however, to be entitled to the elective share, the surviving spouse must take positive action in a legislatively regulated
form. 2 2 3 Failure of the survivor to take such action or a defective
election by the survivor will result in loss of the elective share.
Death of the Nonwealthy Spouse
Many of the considerations mentioned in the preceding section also apply on the death of the nonwealthy spouse. Of course,
in a common-law state, the survivor's elective share will be small
or nonexistent. But this is of little consequence to the survivor
since the common law system has already vested in the survivor
the property acquired during the marriage, either through earnings or income from the survivor's separate property. Since the
deceased spouse was not entitled to share in the ownership of the
property so acquired during the marriage, the decedent has little
or no property, unless there is separate property of the decedent,
over which to make a testamentary disposition. Such a deceased
spouse would be unable to devise property to children or to relatives. In the situation where the husband works for wages while
the wife stays home to care for the home, children, and husband,
this can be a handicap to the wife. 224 Even though the husband's
wages provided an accumulation of wealth, the wife, having no
ownership interest therein, could not dispose of any of the wealth
by will.
On death, the nonwealthy spouse in a common-law state is at a
220. Consideration is given by the court to this latter factor either in the formula
of determining what is fair and equitable or by excluding from division property
which was owned at the time of the marriage or acquired thereafter by gift, devise
or descent.
221. See Kulzer, supra note 181, 43-44.
222. W. BROCKELBANK, supra note 36, at 40.
223. Id.
224. Bingaman, supra note 61, at 36; Kirkwood, supra note 43, at 594.
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considerable disadvantage in comparison with his or her counterpart in a community property state. Since under the community
system a spouse is entitled to make a testamentary disposition of
one-half of the community property, the nonwealthy spouse would
be in a position to dispose of by will a part of the wealth that had
been accumulated by the couple, even if that wealth is directly related to the other spouses' earnings. This opportunity is somewhat
restricted in those community property states which provide that
income from separate property is not community property. Such a
provision will restrict the amount of community property to which
the decedent has testamentary access.
NEBRASKA MARITAL PROPERTY LAW
HISTORICAL OVERVIEW
The land which presently comprises the State of Nebraska was
part of the territory acquired by the United States in the Louisiana
Purchase of 1803. Although this territory was acquired from
France, Spanish law, with its community property system, was in
force when the territory was acquired. 225 Congress provided that
the laws then in effect which were not inconsistent with United
States law were to remain in effect unless altered, modified, or repealed. 226 The territories construed this provision to mean that
227
Spanish law was in force.
Laws adopted by the various territorial legislatures which had
jurisdiction over what later became the State of Nebraska effectively displaced the Spanish law and its community property system with the English common law and its marital property
system. 2 28 By the time Nebraska became a state, its early connection with the community property system was just a distant memory. That memory was briefly revisited when Nebraska, along with
several other states, 229 adopted the community property system in
the 1940's in order to take advantage of the numerous tax benefits
230
then available to the residents of community property states.
When the Revenue Act of 1948231 removed the most attractive ad225. W. DE FUNIAK & M. VAUGHN, supra note 8, § 40.
226. Act of March 26, 1804, §§ 11 and 13, 8th Cong., 1st Sess.; Act of March 2, 1805,
§§ 4, 9, 8th Cong., 2d Sess.; see 14 YALE L.J. 77 (1904).
227. Riddick v. Walsh, 15 Mo. 519, 534-35 (1852); see W. DE FUNIAK & M. VAUGHN,
supra note 8, § 42.
228. W. DE FUNiAK & M. VAUGHN, supra note 8, § 42; e.g. Territorial Act of La. of
July 4, 1807 (Riddick v. Walsh, 15 Mo. 519, 534-35 (Mo. 1852)); Missouri Territorial
Act of Jan. 19, 1816; 1860 Laws of the Territory of Nebraska 59, ch. 1.
229. See note 2 and accompanying text supra.
230. See generally W. DE FUNIAK & M. VAUGHN, supra note 8, § 53.1.
231. Revenue Act of 1948, Pub. L. No. 471, 62 Stat. 110.
PROPERTY
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vantages, 232 Nebraska and the other temporary community proplaws and reinstated
erty states repealed their community property
233
the common-law marital property system.
CHARACTER OF
MARITAL
PROPERTY
Nebraska, by statute provides that a wife's separate property
consists of:
The property, real and personal, which any woman in the
state may own at the time of her marriage, rents, issues,
profits or proceeds thereof and real, personal or mixed
property which shall come to her by descent, devise or the
gift of any person except her husband or which she shall
234
acquire by purchase or otherwise ....
The definition of a wife's separate property also includes "the earnings of any married woman, from her trade, business, labor or services. ' 23 5 Several terms in this statutory scheme require
236
clarification.
First, the Nebraska Supreme Court has held on numerous occasions that notwithstanding the statutory provision to the contrary a completed gift from a husband to his wife does become the
separate property of the wife. 237 The court reasoned that before
the adoption of the various married Women's Acts, the common
law would not allow the wife to own personal property and consequently it was not permissible for her to receive gifts of personal
property from anyone, including her husband. 238 While the com232. The Revenue Act of 1948 allowed couples in common law states to achieve
rough geographical equalization by splitting their incomes through the use of the
joint income tax return, by splitting their estates through the use of the estate tax
marital deduction and by splitting their gifts through (1) the use of the gift tax marital deduction for gifts between spouses and (2) the nondonor spouse's consent to
split, for tax purposes, gifts to third parties. This splitting, when combined with the
various deductions, exemptions and exclusions allowed by law and the progressive
nature of the taxes, resulted in a lowering of taxes for couples residing in common
law property states. See generally Surrey, Federal Taxation of the Family-The
Revenue Act of 1948, 61 HARv. L. REV. 1097 (1948).
233. See generally Note, Epilogue to the Community Property Scramble:
Problems of Repeal, 50 CoLUM. L. REV. 332 (1950); Note, Community Property
Laws--Repeal, 28 NEB. L. REv. 142 (1948).
234. NEB. REV. STAT. § 42-201 (1943).
235. Id. § 42-203.
236. An example is that tangible personal property which is in the joint possession of the husband and wife does not lead to the presumption that such property
belongs to the husband. Brooknau v. Clark, 58 Neb. 610, 611, 79 N.W. 159, 160 (1899);
Oberfelder v. Kavanaugh, 29 Neb. 427, 430, 45 N.W. 471, 472 (1890).
237. Graff v. Graft, 179 Neb. 345, 357-58, 138 N.W.2d 644, 652 (1965); First Nat'l
Bank of Wahoo v. Havlik, 51 Neb. 668, 669-70, 71 N.W. 291, 292 (1897); Studebaker
Bros. Mfg. Co. v. Welch, 51 Neb. 228, 230, 70 N.W. 920, 921 (1897).
238. Dayton Spice-Mills Co. v. Sloan, 49 Neb. 622, 626-35, 68 N.W. 1040, 1042-44
(1896).
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mon law prohibited gifts by the husband to the wife, equity would
sustain and enforce such gifts provided the husband was solvent
and the gift did not impair the existing rights of creditors. 239 Since
the purpose of the Married Women's Acts was to extend the rights
of wives, not to restrict them, the statutory language in the Nebraska Act, which seemingly excludes gifts by the husband to the
wife, did not abrogate the equitable rule which upheld those
gifts.
240
Second, it seems clear that the rents, issues, profits, or proceeds of a wife's separate property are also her separate property.
While this is explicitly set forth in the statute 24 1 with respect to her
prenuptual property, the statute is not as clear regarding the rents,
issues, profits, or proceeds of her separate property acquired after
the marriage. Presumably, such rents, issues, profits, or proceeds
would fall within "real, personal or mixed property ... which she
shall acquire by purchase or otherwise" 242 and thereby be considered her separate property. It is unforturnate the statute is not
243
more explicit on this point.
With these clarifications, the Nebraska definition of the wife's
separate property is about as broad as possible within the ambit of
the common-law approach. Of course, there is still the problem
that a wife generally does not have the same practical opportunities as her husband to acquire separate property. Thus, even
though the law treats the husband and wife equally with respect to
the ownership of their property, the wife is nevertheless at a disadvantage.
MANAGEMENT AND CONTROL
In Nebraska the wife has the exclusive right to manage and
239. Id.
240. Graff v. Graff, 179 Neb. 345, 356, 138 N.W.2d 644, 652 (1965); First Nat'l Bank
of Wahoo v. Havlik, 51 Neb. 668, 670, 71 N.W. 291, 292 (1897); Studebaker Bros. Mfg.
Co. v. Welch, 51 Neb, 228, 230, 70 N.W. 920, 921 (1897); Dayton Spice-Mills Co. v.
Sloan, 49 Neb. 622, 631, 68 N.W. 1040, 1044 (1896).
241. NEB. REV. STAT. § 42-201 (Reissue 1978).
242. Id.
243. This poor drafting is even more unfortunate if the session law which
adopted the present section 42-201 is considered. The wording of the session law
and the compiled section are not the same. The applicable wording of the session
law is "(3) real, personal or mixed property which shall come to her by (a) descent
devise or the gift of any person except her husband or (b) which she shall acquire
by purchase or otherwise shall remain her sole and separate property..." L.B.
191, 1945 Neb. Laws 328. By omitting the words contained in (a) of the quoted portion of the law, the language no longer makes sense. Apparently, the "(a)" should
have appeared before the first "which" in the quote portion of th law. Apparently
the compiler merely eliminated all the numbers and letters within the parentheses
and the parentheses themselves.
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PROPERTY
control her separate property. 24 Her separate property is not subject to disposal by her husband.245 She has the right to contract in
the same manner, to the same extent, and with the same effect as a
married man. 24 6 Again, however, the treatment of husband and
wife in a ostensibly equal manner leads to practical inequality
since the wife has less of an opportunity to acquire separate property which results in her having a less than equal opportunity to
manage and control that property.
LiABILrrY
In Nebraska the wife or her separate property is not liable for
the premarital debts of her husband or for her husband's debts
created subsequent to marriage for items other than family necessaries.
247
Only a portion of her separate property 248 is liable for
those necessaries and then only when execution against the hus249
band for the indebtedness is unsatisfied.
A Nebraska statute provides that the husband's property is
not liable for the premarital debts of his wife. 250 With respect to
necessaries furnished his wife, the common law provided that a
husband was liable for such necessaries. 2 51 The Nebraska Legislature has never relieved the husband of that liability and he continues to be so liable. 252 He is not liable, however, for the contracts
made by his wife subsequent to marriage related to subjects other
253
than necessaries.
244. NEB. REV. STAT. §§ 42-201 to -203 (Reissue 1978).
245. Id.
246. NEB. REV. STAT. § 42-202 (Reissue 1978). See generally Ginsburg, Contractual Liability of Married Women in Nebraska, 20 NEB. L. REV. 191 (1941).
247. NEB. REV. STAT. § 42-201. (Reissue 1978). This is so even though her separate property may be in her husband's possession and assessed in his name. Taggart v. Fowler, 25 Neb. 152, 154-55, 40 N.W. 954, 954 (1888).
248. That portion which is liable is "all property of a married woman, except
ninety percent of her wages, not exempt by statute from sale on execution or attachment, regardless of when or how said property has been or may hereafter be
acquired". NEB. REV. STAT. § 42-201 (Reissue 1978).
249. NEB. REV. STAT. § 42-201 (Reissue 1978). Prior to the enactment of the provision establishing the limited liability of the wife's separate property for her family's necessaries, there was no statutory authority for subjecting a wife's property to
execution for any debt of her husband whatever. Spellman v. Davis, 14 Neb. 263, 15
N.W. 336 (1883).
250. NEB. REV. STAT. § 42-206 (Reissue 1978).
251. Lincoln v. Knudsen, 163 Neb. 390, 394-95, 79 N.W.2d 716, 720 (1956); Acton v.
Schoenauer, 121 Neb. 62, 64, 236 N.W. 140, 141 (1931).
252. In Re White's Estate, 150 Neb. 167, 168-69, 33 N.W.2d 470, 471 (1948). Without his agreement, the husband is not liable for his wife's necessaries while she is
living apart from him, unless she is liling separate from him by his consent or his
conduct was such as to justify her leaving. Belknap v. Stewart, 88 Neb. 304, 308, 56
N.W. 881, 883 (1893).
253. Lincoln v. Knudsen, 163 Neb. 390, 394, 79 N.W.2d 716, 720 (1956).
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DIVORCE
Nebraska falls within the classification of states that provides
for the division of the marital property in accordance with equitable principles without regard to which spouse actually owns the
property.254 The classifications of property of the spouses which
the courts seek to divide is not set forth in a statute. However, the
courts usually seek to restore to a spouse: property brought into
the marriage by the spouse; 255 and property received by the
spouse during marriage by inheritance, devise, or gift. 256 The property which the spouses acquired by their joint efforts is subject to
equitable division. 257 The courts are empowered to divide such
258
property regardless of how legal title is held.
The applicable Nebraska statute provides for "a division of
property as may be reasonable. '259 The factors which the statute
directs should be considered in arriving at a reasonable division of
260
property include:
The circumstances of the parties, duration of the marriage,
a history of the contributions to the marriage by each
party, including contributions to the care and education of
the children and interruption of personal careers or educational opportunities, and the ability of the supported party
to engage in gainful employment without interfering with
the interests of any minor children in the custody of such
party.
The court often considers other factors in the division of property, such as the health, relative earning power, and education of
the parties. 26 1 These, and related factors would seem to fall within
the "circumstances of the parties" which the statute permits to be
considered. The court will no longer consider the reasons for the
divorce or the misconduct of a spouse in dividing the marital prop254. See note 171 and accompanying text supra.
255. Ragains v. Ragains, 204 Neb. 50, 54, 281 N.W.2d 516, 518 (1979); Corn v. Corn,
190 Neb. 383, 387, 208 N.W.2d 678, 681 (1973).
256. Ragains v. Ragains, 204 Neb. 50, 54, 281 N.W.2d 516, 518 (1979); Erickson v.
Erickson, 202 Neb. 345, 349, 275 N.W.2d 287, 290 (1979); Edwards v. Edwards, 199 Neb.
581, 584, 260 N.W.2d 319, 320 (1977); Allen v. Allen, 198 Neb. 544, 546-47, 253 N.W.2d
853, 855 (1977); Olsen v. Olsen, 195 Neb. 8, 13 N.W.2d 618, 621 (1975).
257. Erickson v. Erickson, 202 Neb. 345, 349, 275 N.W.2d 287, 290 (1979); Tavlin v.
Tavlin, 194 Neb. 98, 102, 230 N.W.2d 108, 111 (1975); Fotinos v. Fotinos, 184 Neb. 486,
489, 168 N.W.2d 698, 700 (1969).
258. Cozette v. Cozette, 196 Neb. 780, 783, 246 N.W.2d 473, 475 (1976); Tavlin v.
Tavlin, 194 Neb. 98, 102, 230 N.W.2d 108, 111 (1975).
259. NE . REV. STAT. § 42-365 (Reissue 1978).
260. Id.
261. Sanchez v. Sanchez, 186 Neb. 427, 429, 183 N.W.2d 743, 744 (1971).
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erty.
PROPERTY
262
The statute directs that various factors be considered which
tend to be of overall benefit to the nonworking spouse. The first of
these factors is "a history of the contributions to the marriage by
each party, including contributions to the care and education of
the children. '263 By specifically mentioning the contributions to
the care and education of the children, the statute recognizes that
these contributions which are generally the result of the wife's efforts are of a sufficient magnitude to warrant, in appropriate circumstances, the wife receiving property on divorce as a direct
result of those contributions. The language should go further,
however. By specifically mentioning contributions to the care and
education of the children, the statute specifically directs attention
to only one aspect of the wife's traditional domestic duties. It
would be preferable for the statute to contain language similar to
that found in the Uniform Marriage and Divorce Act. This would
specifically direct the court to consider "the contributions of a
264
spouse as a homemaker or to the family unit."
The Nebraska statute also directs that the "interruption of personal careers or education opportunities" be considered in the division of property.265 While this statute is obviously of benefit to a
spouse who foregoes personal achievement in furtherance of the
marital relationship, it is unfortunate that the statute does not recognize the spouse's contributions directly instead of casting it in
terms of interrupting career or educational opportunities.
While the Nebraska statute does not go as far as it might, it
does provide more protection to the nonworking spouse than most
other common-law states. 26 6 The protection is not as great how267
ever, as is afforded wives residing in community property states.
The division of property in Nebraska, as in most other states,
is a three tier process. The first tier is that the spouses themselves
can agree on a property settlement. 268 If they cannot agree, the
district court has jurisdiction to divide the property. 269 The final
262. Ragains v. Ragains, 204 Neb. 50, 56, 281 N.W.2d 516, 519 (1979); Campbell v.
Campbell, 202 Neb. 575, 581, 276 N.W.2d 220, 224 (1979).
263. NEB. REV. STAT. § 42-365 (Reissue 1978).
264. UNIFORM MARRIAGE AND DIVORCE ACT § 307, Alternative A. The Nebraska
Supreme Court has on occasion considered additional domestic contributions of
the wife. See, e.g., Remmers v. Remmers, 200 Neb. 647, 650, 264 N.W.2d 857, 860
(1978).
265. NEB. REV. STAT. § 42-365 (Reissue 1978).
266. See note 185 and accompanying text supra.
267. See note 180 and accompanying text supra.
268. NEB. REV. STAT. § 42-366 (Reissue 1978).
269. Cozette v. Cozette, 196 Neb. 780, 783, 246 N.W.2d 473, 475 (1976).
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tier is appeal to the Nebraska Supreme Court. The supreme court
will not disturb the district court's division of property unless it
can be shown that the trial court abused its discretion. 270 To represent an abuse of discretion, the division of property must be pa2 71
tently unfair on the record.
The Nebraska Supreme Court has stated on a number of occasions that generally speaking, property awarded to the wife varies
27 2
from one-third to one-half of the value of the property involved.
It would be more consistent with the marital relationship and the
total contributions to the marriage if the property acquired by the
joint efforts of the parties would be divided equally between the
spouses. 273 By consistently giving the wife less than half, she continues to be treated as less than a full and equal marital partner.
DEATH OF A SPOUSE
Nebraska has adopted, with minor modifications, an elective
share statute which is patterned after the Uniform Probate Code
and provides for the surviving spouse of a Nebraska resident to
elect to take one-third of the augmented estate.2 74 The Nebraska
statute, while the preferred type of elective share statute, nevertheless, has a number of drawbacks. Namely, no consideration is
given to the duration of the marriage or the time and manner of
acquisition of the decedent's property. The division of property on
termination of the marriage achieves different results depending
on whether the marriage was terminated by death or by divorce,
and the surviving spouses' interest in the decedent's estate is not
vested but requires the survivor to take the necessary steps to acquire the property rather than giving the survivor a vested interest.
Further, the Nebraska statutory scheme does not adequately provide for the nonwealthy spouse, traditionally the wife, who prede270. Schmer v. Schmer, 197 Neb. 800, 802, 251 N.w.2d 167, 169 (1977); Essex v.
Essex, 195 Neb. 385, 386-87, 238 N.W.2d 235, 237 (1976).
271. Campbell v. Campbell, 202 Neb. 575, 581, 276 N.W.2d 220, 224 (1979); Tavlin v.
Tavlin, 194 Neb. 98, 103, 230 N.W.2d 108, 112 (1975); Remmers v. Remmers, 200 Neb.
647, 651, 264 N.W.2d 857, 860 (1978).
272. Ragains v. Ragains, 204 Neb. 50, 55, 281 N.W.2d 516, 519 (1979); Baker v.
Baker, 201 Neb. 409, 412, 267 N.W.2d 756, 758 (1978); Grummert v. Grummert, 195
Neb. 148, 152, 237 N.W.2d 126, 129 (1975). There are, of course, cases where the wife
receives in excess of one-half of the property. Campbell v. Campbell, 202 Neb. 575,
578-79, 276 N.W.2d 220, 223 (1979). The courts have stressed, however, that the division of property will not be made on any fixed rule or mathematical formula. Grummert v. Grummert, 195 Neb. 148, 152, 237 N.W.2d 126, 129 (1975).
273. In some cases the courts do divide the property. E.g. Magruder v. Magruder, 190 Neb. 573, 209 N.W.2d 585 (1973).
274. NEB. REV. STAT. § 30-2313(a) (Reissue 1975).
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PROPERTY
119
ceases her husband with no power of testamentary disposition
over property accumulated during the marriage.
CONCLUSION
The present community property system both in terms of its
practical effects and philosophical basis is more compatable with
the current appreciation of the rights of women and the marital
relationship than is the common-law system. While the forces of
inertia and inherent disruptions that would result from so radical a
change made it unlikely that any current common-law jurisdiction
will adopt the community system in the forseeable future, it is believed that the common law's approach to marital property rights
will increasingly reflect the philosophy and tenets of the community system and will increasingly approximate its results.