When it comes to property ownership, there are common law property states and community property states.
While almost all states are considered common law property states, nine are regarded as community property states.
So, what are the differences between common law property states and community property states?
Common Law Property
In common law property states, property belongs to the title owner – even if it is acquired after marriage.
Therefore, property you acquire is only owned by you, unless you otherwise name your spouse under the title or deed to the property.
There are 41 states that practice common law property, including Virginia.
When you pass away, you are able to leave property to whomever you choose.
However, leaving your estate intestate, or without a will, means your successors – as directed in the Virginia Code – inherit your property.
In order for property to be yours, it must have a title or deed with your name to prove sole ownership.
You cannot bequeath property that you do not own outright.
Tenancy in Common
Establishing tenancy in common between you and your spouse means that you each hold interest in the property.
However, each share is held separately, and is therefore separately transferrable.
In other words, you hold a separate interest from your spouse, which you are able to bequeath to anyone you designate.
Your spouse is not the automatic inheritor of your share of interest.
Your division of interest considers the property as a whole, not in parts.
As a tenant in common, you and your spouse have no specific interest in particular aspects of the property.
Therefore, you are free to designate any beneficiary to inherit your share.
Joint Tenancy
Spousal joint tenancy is similar to tenancy in common, although slightly different in inheritance.
You and your spouse share ownership obligations and responsibilities, however, your joint tenancy carries a “right of survivorship” for each share.
Therefore, you inherit your spouse’s share immediately upon death, and vice-versa.
The property of your joint tenancy agreement is immediately inherited by the surviving spouse, which exempts that property from probate procedure.
You create your joint tenancy by establishing a will or a trust, at which time you opt for “joint tenancy” on the deed of the property in question.
When one of you dies, the other inherits automatically, barring any beneficiaries outside of the partnership to inherit the property.
Tenancy by the Entirety
Under tenancy by the entirety, you and your spouse do not own shares of the property. Instead, you own the property together, as a single legal entity.
You and your spouse are barred from surrendering ownership without the approval of the jointly partnered spouse.
This form of joint tenancy is only available to married couples due to the nature of the property’s ownership.
Tenancy by the entirety is comparable to the practice of community property, however, tenancy by the entirety is optional for property ownership.
Community Property
Marital Community Property
In the states of Alaska, Arizona, California, Idaho, Nevada, New Mexico, Texas, Louisiana, Wisconsin and Washington, property between spouses is considered community property.
Community property is any tangible and intangible property between spouses: monetary income, property, and debts accrued during the marriage.
Therefore, spouses own the property equally, as well as owe the debts equally – so long as they are obtained after the marriage.
However, there are some properties that remain separate in community property states, including:
- Property owned by a spouse prior to marriage, or following separation
- Inheritances or gifts made to one spouse during the marriage
- Pre-marital debts
Generally, these forms of property are considered separate from the marital estate.
“Opt-in”
Spouses in some community property states, like Alaska, have the ability to “opt-in” property that would otherwise be considered separate property.
For example, if you own a house that you purchased prior to your marriage, you can opt-in that property as a community asset by adding your spouse’s name to the title or deed of ownership.
This inclusion creates the property as community property.
The opt-in of spousal ownership of property cannot be revoked without the express permission of both parties.
Designated Separate Property
Living in a community property state does not mean that you are only entitled to community property after marriage.
It is still possible to own property separate from your spouse following your union.
A spouse who inherits property is not required to share that property’s ownership with a spouse.
Additionally, property that is given as a gift to one spouse is not owned by the pair, it is owned by the beneficiary.
The establishment of a pre-nup, post-nup, or written agreement establishing your separate and community property allows you to avoid automatic community property assumptions.
A pre-nup is signed before your union, while a post-nup is enacted once you’re already married.
A written agreement is drafted at any point in the marriage to cover any individual property.
Conclusion
State property law is complex, and can determine whether you truly own your property or not.
Therefore, it’s important to your estate plan to establish your ownership, and if not, your share of ownership.
Remember, you cannot bequeath property that you do not own outright.
To review ownership of your estate property, schedule a consultation with our estate planning attorney.
