Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Sunday, April 10, 2011

Community Property v. Common Law

J. Thomas OldhamJ. Thomas Oldham (John H. Freeman Professor of Law, University of Houston Law Center) recently published his article entitled You Can’t Take it with You, and Maybe You Can’t Even Give it Away: The Case of Elizabeth Baldwin Rice, 41 U. Mem. L. Rev. 95 (2010). The abstract available on SSRN is below:

This article compares the rules in community property states and common law states about what the testamentary power of the first spouse to die [sic]. In community property states, the spouse has the right to devise half of the community estate, regardless of title. In a common law state, the testamentary power of the spouse is limited to property over which he or she has title. So, when the “poor” spouse dies first in a common law state, it is quite possible that the other spouse, by dictating how title is taken when property is acquired during marriage, can unilaterally decide who gets to devise the marital estate. I argue that this is not consistent with the contemporary attitudes that marriage is an economic partnership. I propose a way to rectify this problem short of adopting a community property system.


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