There are two different laws that decide property ownership in the event of death or divorce. They are known as community property and common law. Common law is also known as separate property. The list of community property states only consists of nine states.
The majority of these states are out west. Community property means that anything acquired during the marriage belongs equally to the husband and wife. If the husband and wife get a divorce, they will be required to split their assets they earned while they were together right down the middle.
The states that follow the community property law are Arizona, Nevada, California, New Mexico, Idaho, Washington, Louisiana, Wisconsin and Texas. All of these states agree that everything earned during the marriage should be divided equally at the time of a divorce.
Unless an estate plan is clearly written out and notarized, each state will decide exactly who gets what in the even of a split between the couple. While they follow the same general rule, the courts will decide exactly how their assets will be divided if rules between spouses are not written clearly.
Alaska also falls under the list of community property states but has a little more leniency when it comes to the law. The couple can decide what property they will consider separate and what they will consider community. If someone lives in one of the nine community property states listed above, they have to be careful with any gifts or inheritance they may obtain during the marriage. If the individual decides they want to keep something that is given specifically to them, they need to put it in a separate account that is under their name only.
States who don't have the community property laws keep all assets separated between the husband and wife. If a divorce occurs, the husband and wife keep everything that is in their own name, including debt. If anything is listed jointly, the courts determine who gets what.
Sometimes this can work out better if one person is the sole earner. They aren't going to give the other person the things they have worked hard for.
For investors that plan to or have over the years accumulated large amounts of investment properties and live in a state that falls under the list of community property states, it would be wise to file your taxes separate from your spouses.
The tax benefits are not as great for those who file separately but they will have less tax liability.
The laws also make provisions for the allocation of real estate investments into safe entities like limited liability companies or trusts. I would like to state very strongly that professional legal assistance and advice is very important and can protect you from getting in way over your head.
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