You Can’t Take it with You, and Maybe You Can’t Even Give it Away: The Case of Elizabeth Baldwin Rice
27 Pages Posted: 1 Apr 2010 Last revised: 2 Jan 2011
Date Written: April 1, 2010
This article compares the rules in community property states and common law states about what the testamentary power of the first spouse to die. 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.
Keywords: Probate Estate, Augmented Estate, Decedent’s Estate, Spouse’s Forced Share, Marital Property Rights
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