Dower, Curtesy, Community Property Requirements State. Estate Planning Solution with Living Trust

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In most states the laws give to a surviving spouse certain legal rights of division of marital property. Is your state a community property, dower or curtesy requirements state?



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Dower, Curtesy, Community States  

Dower, Curtesy, Community States


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 Law. Some 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 grant 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 Laws have the same effect as Curtesy Laws except that they grant 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.

Dover and Curtesy States: Hawaii, Kentucky, Massachusetts, Michigan, Ohio, Vermont.

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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