Introductory Note: In this chapter, we examine the special property problems raised by the fact that two people having an interest in property are married. Any discussion of property rights during marriage must be divided into the common-law system (followed in most states) on the one hand, and the system of community property (followed in eight states) on the other hand. Therefore, our first three sections treat three different aspects of the common-law system: property rights during marriage, property rights upon divorce, and property rights on death of one spouse. Then, we treat the community-property system. Next, we treat various non-traditional approaches to marriage, including domestic partnerships and same-sex marriage. Finally, we discuss briefly homestead laws, which protect the family residence from seizure by creditors.
A. Introduction: All but eight states govern marital property in a way that is derived from traditional common-law principles. The common-law system of marital estates, as it existed in, say, the England of the 1500s, has been so changed by modern statutes that it is almost unrecognizeable. However, because a few vestiges of the traditional system survive, you must have some sense of how the common-law approach to marital property worked.
B. The feudal system: The feudal era granted the husband extreme dominion over his wife’s property – the husband received virtually unfettered ownership of his wife’s property during their joint lives.
1. Coverture and jure uxoris: This complete dominance was carried out in part by two doctrines, coverture and jure uxoris.
a. Personal property (coverture): At the moment of marriage, the wife ceased to be a separate person for legal purposes – “husband and wife were regarded as one, and that one was the husband.” D&K, p. 367. Under the doctrine of “coverture,” all personal property owned by the wife at the time of the marriage became the property of the husband.
b. Real property (jure uxoris): The husband’s dominion over his wife’s real estate was almost as complete. The husband did not gain formal legal title to lands owned by his wife at the moment of marriage. But under the doctrine of “jure uxoris”, the husband had the right to possess all his wife’s lands during marriage, including land acquired by the wife after the marriage. D&K, p. 368. Two practical consequences of the jure uxoris were that the husband could spend the rents and profits of the land as he wished, even if the wife protested, and he could sell his right (e.g., assign to another person the right to rents and profits).