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13 Cards in this Set

  • Front
  • Back
• At common law wife has a dower in all freehold land
(i) if which her husband seised during marriage
(ii) which is inheritable by issue born of the marriage
o Dower was a life estate in 1/3 of each parcel of qualifying land
• Dower attaches to land at the moment of marriage, if the land is then owned or thereafter when the land is acquired it is incomplete until the husband dies
o If wife predeceases husband or they are divorced the incomplete dower is extinguished
o If wife survives husband she becomes entitled to her dower in possession
• Life estate in all freehold land wife received during marriage that was inheritable by the issue of husband and wife if issue of the marriage were born alive
o Men were not protected until they produced offspring
o Women were protected at the time of marriage
• At his wife's death, a widower was at common law entitled to a life estate in each piece of the wife's real property if certain conditions were fulfilled, was entitled to all personal property
Modern Elective Share (aka Forced Heir’s Share)
• "Forced share" or "modern elective share" legislation gave surviving spouse an elective forced share in all property (real and personal) that the decedent spouse owned at death (typically 50%)
• Surviving spouse not only entitled to support (dower and curtsey) but to an ownership share in the decedent spouse's property
• Elective forced share usually applies only to property that the decedent spouse owns at death usually does not apply to property held in joint tenancy or life insurance proceeds
• In many state the surviving spouse can set aside gifts made with the intent to defeat the elective share
Deferred Community Property
• One spouse does not receive a property interest in the other spouse's property during marriage but only at the other spouse's death
Community Property
• Earnings of each spouse during marriage should be owned equally in undivided shares by both spouses
o Basic assumption is that both the husband and wife contribute equally to the marital success of the marriage and thus each should get to own an equal share of the property acquired by joint efforts
• Includes: earnings, rents, profits, and fruits of the earnings
• Property acquired and possessed during marriage is presumed to be community property unless the strong presumption can be overcome by a preponderance of the evidence
American Common Law
• Hold all property in separate ownership
American Community Property
• Hold property acquired from earnings as a community property and inherited property as separate property
Universal Community Property
• Hold all their property from whatever source as community property
Separate Property
• Property that is acquired before marriage and property that is acquired during marriage by gift, devise, or descent.
• All property that is not community is separate (aka: individual property)
• In Idaho, Louisiana, Texas and Wisconsin, the income from all property (separate as well as community) is community property. In the other states, the income from separate property retains its separate character.
• Separate property can unintentionally become community property if separate and community property commingle.
• In most states husbands and wives acting with each other’s consent can transmute community property into separate property and vice versa.
Common Law Property
• In common law states, the property is owned by the person who generates it, subject to a claim by the spouse at the time of marital dissolution and subject to a support obligation.
Inception of Right Rule
• The character of the property is determined at the time the spouse signed the contract of purchase. The house is that respective spouse’s separate property.
• The community is entitled only to a return of community payments plus interest.
Time of Vesting Rule
• Title of said property does not pass to the wife until all the installments are paid, and hence the property is community property.
Pro rata sharing rule
• The community payments “buy in” a pro rata (proportionately, according to an exact rate) share of the title.