Community property

From LawGuru Wiki

Community property is a marital property regime that originated in civil law jurisdictions, and is now also found in some common law jurisdictions.

In a community property jurisdiction, most property acquired during the marriage (except for gifts or inheritances) is owned jointly by both spouses and is divided upon divorce, annulment or death. Joint ownership is automatically presumed by law in the absence of specific evidence that would point to a contrary conclusion for a particular piece of property. The community property system is usually justified by the idea that such joint ownership recognizes the theoretically equal contributions of both spouses to the creation and operation of the family unit.

Division of community property may take place by item, by splitting all items or by value. In some jurisdictions, such as California, a 50/50 division of community property is mandated by law; in others, such as Texas, a divorce court may decree an unequal division of community property. In non-community property states property may be divided by equitable distribution. Generally speaking, the property that each partner brings into the marriage or receives by gift, bequest or devise during marriage is called separate property. See division of property.

[edit] United States

In the United States there are nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. In addition, Puerto Rico is a community property jurisdiction. Married couples in Alaska can also adopt community property rules, at least for the purposes of that state's law, by signing an agreement to that effect. Most states that operate under community property regimes were first colonized by Spain or France, which have always been civil law jurisdictions.

Community property has certain federal tax implications, which the IRS discusses in its Publication 555. In general, community property may result in lower federal capital gain taxes after the death of one spouse when the surviving spouse then sells the property. Some states have created a newer form of community property, called "community property with right of survivorship." This form of holding title has some similarities to joint tenancy with right of survivorship. The rules and effect of holding title as community property (or an another form of concurrent ownership) vary from state to state. Consumers who are considering how to hold property should either research these matters carefully or consult someone familiar with these issues, such as an attorney who practices in the state where the property is located.

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