Question 21
Who will own what property?

Traditional default answer:  The husband will hold title to everything.
Under the traditional doctrine that marriage created one person,
the husband became the legal owner of everything
—including whatever the wife brought to the marriage,
even her clothes and other personal items.
If she had income-producing property before the marriage,
that also passed into his name—both the assets and the income.
Usually a wife needed her husband's consent to operate a business.
The law assumed women were incompetent in business matters,
so all of these responsibilities were given to the husband.

Default answer in common law states:
Each partner retains title to whatever he or she owned before marriage.

     Most of the states in the United States
now define property under their marriage laws
according to the common law or separate property system.

     Under common law, each spouse individually owns
whatever he or she brought to the marriage
and whatever he or she might inherit during the marriage.

     In the past in separate-property states,
a wife had no right to assets acquired or improved during a marriage
—unless she paid for them with her own money.
Now some separate-property states have re-written their laws
to divide the property upon divorce giving a fair share to the wife.

     One common example from the past: farm land:
If the man owned it before marriage, he still owned it after the marriage,
even tho its value might have increased considerably,
in part due to the efforts (and sometimes financial contribution) of his wife.

Default answer in community property states:
All property earned or acquired (except by inheritance)
belongs equally to both spouses.
This means that a wife owns half of her husband's income and vice versa.
In some states, income produced by separate property
(such as income from a business one partner owned before marriage)
is also the community property of the spouses together.

Question 21:            WHO WILL OWN WHAT PROPERTY?            by James Park            109

Creative answers:  As you enter a new relationship,
you might bring with you considerable property accumulated either
thru your own efforts and/or inherited from your families.
In such cases it is usually advisable to create
a pre-nuptial agreement before you marry
describing and defining just what each owns separately
that will remain separate property
and how future acquisitions and income will be treated.

     If you feel strong ownership of even small holdings,
it would be wise to list what each of you owned before the relationship began
and how such possessions will be treated during and after the relationship.
An inventory of at least the most valuable items each owns separately
will make separating your possessions much easier
if and when your relationship ends before death.
Estate wills can specify what happens to such valuable items after your deaths.

     Before property gets mixed together so that it might be difficult to separate,
you should write down everything you own, in whatever detail you please.
Some items obviously belong to one or the other, such as clothing.
And items that you do not care about or which can easily be replaced
if the other partner gets them can also be left out of this listing.

     What items of personal property and real estate does each partner own?
What is its current value?
What property does each partner expect to receive
thru gift or inheritance in the future?
Will you continue to own your personal property individually?
Or will these items of property be owned by the partnership?

     How will income and expenses associated with this property be handled?
How will such accounting be done?  Who will do this bookkeeping?
If partnership funds are used to maintain the property,
will the partnership acquire an ownership-interest in the property?
How will any increase or decrease in the value of the property be handled?

     If you do not begin to think about
how the value of your property might have changed
until you decide to end your partnership,
then you might have elaborate conflicts about who gets how much.
But if you set out the principles of property ownership at the beginning,
then you will know better how to manage the property during your relationship
and how you will separate your property again if you end your relationship.


Above you have the first two pages of Question 21 from Designer Marriage.
Four more pages explore other ways of handling your property.

Return to the table of contents for

Designer Marriage: Write Your Own Relationship Contract

Created April 9, 2009; Revised

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