Who owns what property in a marriage, after divorce, or after a spouse's death depends on whether the couple lives in a common law property state or a community property state.
During marriage, these classifications may seem trivial -- and typically aren't a factor -- but in the unfortunate events of divorce or death, these details become very important.
The following information will help you better understand who owns what with respect to marital property.
Marital Property and Common Law Property States
Most states are common law property states. So, what does it mean to live in a common law property state and who owns what after a divorce? The term "common law" is simply a term used to determine the ownership of marital property (property acquired during marriage). The common law system provides that property acquired by one member of a married couple is owned completely and solely by that person.
Of course, if the title or deed to a piece of property is put in the names of both spouses, however, then that property would belong to both spouses. If both spouses' names are on the title, each owns a one-half interest.
Example: If George buys a car and puts it only in his name, that car belongs only to George. If George buys a car and puts it in both he and his husband Bob's name, then the car belongs to both of them.
Property distribution upon death or separation: When one spouse passes away, their separate property is distributed according to their will, or according to probate (in the absence of a will). The distribution of the marital property depends on how the spouses share ownership. If they own property in "joint tenancy with the right of survivorship" or "tenancy by the entirety," the property goes to the surviving spouse. This right is independent of what the deceased spouse's will says.
Beginning a separation or divorce can be taxing. We've put together a Clients' Guide to help you get started.