Community property in the United States information
Property regime in the United States
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Map of the United States with community property states in red. Additionally, Alaska, Florida, Kentucky, and Tennessee are elective community property states, and of the five inhabited US territories, Puerto Rico and Guam are community property jurisdictions.
Under a community property regime, depending on the jurisdiction, property owned by one spouse before marriage, and gifts and inheritances received during marriage, are treated as that spouse's separate property in the event of divorce. All other property acquired during the marriage is treated as community property and is subject to division between the spouses in the event of divorce. The United States has nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.[1] Four other states have adopted optional community property systems. Alaska allows spouses to create community property by entering into a community property agreement or by creating a community property trust.[2] In 2010, Tennessee adopted a law similar to Alaska's and allows residents and non-residents to opt into community property through a community property trust.[3] More recently, Kentucky adopted an optional community property system in 2020, allowing residents and non-residents to establish community property trusts.[4] Finally, Florida adopted a similar law in 2021, allowing citizens and noncitizens to establish community property trusts. [5]
The commonwealth of Puerto Rico also allows property to be owned as community property,[6] as do several Native American jurisdictions. In the case of Puerto Rico, the island had been under community property law since its settlement by Spain in 1493.[citation needed]
The U.S. Supreme Court ruled that a similar statute allowing spouses to elect a community property system under Oklahoma law would not be recognized for federal income tax reporting purposes.[7] The Harmon decision should also apply to the Alaska, Florida, Kentucky, and Tennessee systems for income reporting purposes.[8]
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.[9]
Property owned by one spouse before the marriage is sometimes referred to as the "separate property" of that spouse, but there are instances in which the community can gain an interest in separate property and even situations in which separate property can be "transmuted" into community property. The rules vary from jurisdiction to jurisdiction.
^"Internal Revenue Manual – 25.18.1 Basic Principles of Community Property Law". www.irs.gov. Retrieved 2016-08-05.
^See Alaska Stat. §§ 34.77.020 – 34.77.995
^McDaniel, A. Stephen; Adams Jr, C. Michael. "Community Property Joint Revocable Trust" (PDF). Wyatt Tarrant & Combs.
^Kentucky Revised Statutes §§ 386.620, 622, 624.
^Moore, Blakely. "Florida Community Property Trusts". Law Office of Larry E. Ciesla.
^"Internal Revenue Manual – 25.18.1 Basic Principles of Community Property Law". www.irs.gov. Retrieved 2016-08-05.
^Commissioner v. Harmon, 323 U.S. 44 (1944).
^"Internal Revenue Manual – 25.18.1 Basic Principles of Community Property Law". www.irs.gov. Retrieved 2016-08-05.
^See v. See, 64 Cal. 2d 778 (1966). Chief Justice Roger J. Traynor of the Supreme Court of California wrote: "If funds used for acquisitions during marriage cannot otherwise be traced to their source and the husband who has commingled property is unable to establish that there was a deficit in the community accounts when the assets were purchased, the presumption controls that property acquired by purchase during marriage is community property. The husband may protect his separate property by not commingling community and separate assets and income. Once he commingles, he assumes the burden of keeping records adequate to establish the balance of community income and expenditures at the time an asset is acquired with commingled property." The See family, of course, was the family that founded See's Candies, a major manufacturer and retailer of candy on the West Coast of the United States.
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