Property Ownership in Marriage

There are certain rules regarding property ownership in a marriage. Generally, a married couple owns the majority, if not all, of their property jointly. If you wish to leave all your property to your spouse upon your death, then typically you need not worry about which property belongs to you and which belongs to your spouse. However, if you prefer to instead divide up your estate among several beneficiaries, including children or grandchildren, then you’ll need to be aware of what exactly belongs to you- in other words, what is yours to give away. Property ownership is largely controlled by state law and whether the individual lives in a community property state. For any unanswered questions, be sure to contact a Albuquerque probate lawyer.

Community Property States

New Mexico is a community property state, along with Arizona, Nevada, Louisiana, California, Idaho, Washington, Texas, and Wisconsin. In Alaska, spouses have the option to execute a formal document making their property community property. If you live in one of these states, you may already be aware that the laws regarding marital property ownership can be complicated. In general, money earned and property acquired by either spouse during marriage is owned equally by each spouse in a community property state. Property owned by one spouse before marriage and brought into the marriage remains that spouse’s separate property. Similarly, a debt incurred by one spouse during marriage is legally considered the debt of both spouses. In a community property state, when one spouse dies, that spouse’s share of the community property will then pass to the surviving spouse unless the deceased spouse’s will specifies otherwise.  As for a spouse’s separate property, the owning spouse can leave the property to whoever he or she chooses in a will.

Non-Community Property States

Many states, aside from community property states like New Mexico, employ a common law system to determine marital property ownership. In those states, it is generally simple to discern which spouse owns what property. If one spouse’s name is on the title or deed to certain property, that spouse owns the property. In this case, the individual spouse would be free to give that property away, or leave it in a will upon their death, to whoever they choose.

If on the other hand, two spouses are both named on a title or deed to property, the property is jointly owned and each spouse has a 50% ownership interest in the property. As far as giving away one spouse’s interest in the property, that spouse’s rights to do so will depend on the form of ownership in which the couple owns the property. If the property is owned as joint tenants with rights of survivorship, when one spouse dies, his ownership interest will automatically pass to the surviving spouse, who will then be sole owner, regardless of what the deceased spouse’s will may have said. If the property is owned in tenancy by the entirety, the same is true. If, however, spouses own property as tenants in common, then each spouse could leave their half of the property to someone other than the other spouse. In the case of property for which there is no title or ownership document, generally the spouse who paid for the property is considered the owner. The same is true if the property was received by one spouse as a gift.