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Is your state a community property, dower or curtesy requirements state?
In most states the laws give to a surviving spouse certain legal rights that
cannot be defeated by a will. Some of these state laws, but not all, also give
to a surviving spouse certain rights that cannot be defeated by gifts,
the revocable living trust or other transfers. These marital property rights
are called community property, dower, curtesy, elective rights,
statutory rights or various other terms. These rights typically give one-half,
one-third, or some other portion of the estate of the deceased to the
surviving spouse.
The laws of several states require grantors to leave a certain amount of money
to their spouses. The portion of property due a wife by law is called dower,
the portion of property due a husband from his wife is called curtesy.
The laws of these states require spouses to leave a minimum of one-third to
one-half of their property to the surviving spouse, meaning that if you live
in a dower state and in your trust you expressed your wish to grant to your
wife only 25% of the property you own, the state will ignore your wishes and
give at least one-third (or more) of your property to your wife.
Curtesy States. Delaware, District of Columbia, Hawaii, Kentucky,
Massachusetts, Michigan, Ohio, Rhode Island, Tennessee, Vermont, Virginia,
West Virginia, Wisconsin are curtesy states. These States have laws that affect
the right and use of a deceased wife's property by the surviving husband. These
laws are called Curtesy Laws, and what they grand to surviving husband is the
right to use one-third or more of his deceased wife's real property for as long
as he lives. However, he must not have signed the deed nor disclaim an interest
in the property.
Dower States. Alabama, Delaware, Florida, Hawaii, Kentucky, Massachusetts,
Michigan, Montana, New Jersey, Ohio, Rhode Island, South Carolina, Tennessee,
Vermont, Virginia, West Virginia, Wisconsin are Dower states. Dower Laws have the
same effect as Curtesy Laws except that they grand the surviving wife, the right
and use of one-third or more of her deceased husband's real property for as long
as she lives, in spite of a prior sale of the property, provided she did not sign
the deed nor disclaim an interest in the property.
Community Property States. Community property states include Arizona,
California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington,
Wisconsin. In community property states, all money earned by the spouses
during their marriage, as well as all property acquired with that money, is
divided in equal proportion (Equitable Distribution).
In general, community property consists of whatever property is gained during
the marriage by the toil, talent, or other productive faculty of either spouse.
Usually, property obtained by one spouse by gift, devise, or descent is not
included in community property. In community property states, you should check
the specific laws of your state on these questions, since they vary from state
to state. Therefore, it is suggested that the spouse of the grantor sign all
transfers of property by a married person.
This is not a problem for most married people because they generally own
property in joint names. If community property is to be placed in a revocable
trust by a married person, the grantor's spouse should join in the execution of
the trust agreement.
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