Community Property and Your Estate Plan

Confused couple

If you are considering retiring to a state with community property laws, you should consider how your estate plan could be affected.

Chances are you do not live in a community property state. Only a handful of states have community property marriage laws. However, some of the states that do have them are popular destinations for people to move to. For example, Arizona is a popular retirement destination with community property laws.

The main difference between community property states and other states is in how marital assets are considered to be legally owned. In a community property state everything acquired during a marriage is considered to be equally owned by the husband and wife except for any inheritances solely made to one of them. Property acquired before the marriage is not community property.

This is different from other states where spouses can continue to acquire separate property after marriage.

As Barron's Penta Daily discussed in "How Community Property States Are Different," this has implications for estate plans, such as:

  • Capital Gains – Community property states have a benefit for surviving spouses because the spouse receives a step-up basis on an entire home, for example, instead of only half the value of the home in other states.
  • Gifts – If one spouse gives a gift of community property without the permission of the other, the spouse who did not make the gift can revoke it later.
  • Life Insurance Trusts – Funding a life insurance trust for the benefit of a spouse needs to be done from non-community property or the entire purpose of the trust will be defeated.

If you live in a community property state, or are considering retiring to one, then contact a qualified estate planning attorney to learn the legal implications.

Reference: Barron's Penta Daily (June 28, 2016) "How Community Property States Are Different"

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