In common law property states, each spouse individually owns whatever they earn or acquire during marriage, unless title is held jointly. Most U.S. states follow this system. Your estate plan needs to identify which assets are truly yours alone before you can decide how to distribute them in your will.
Most estate planning guidance assumes a one size fits all approach, but how property is owned during marriage depends heavily on whether you live in a common law state or a community property state. The majority of states, including the District of Columbia, follow common law property rules. This guide covers what that means for your estate plan, what counts as separate property, and how debts and prenuptial agreements fit in.
What Is Common Law Property?
In a common law state, property acquired during marriage is generally treated as belonging to whichever spouse earned or acquired it, rather than being automatically co-owned by both spouses. According to Cornell Law School's overview of community property, this stands in direct contrast to community property states such as California, where income and property acquired during marriage generally belong to both spouses equally regardless of whose name is on the title.
Which States Follow Common Law Property Rules?
The large majority of U.S. states, roughly 40 states plus the District of Columbia, follow common law property principles. Only a handful of states, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin, are community property states, with Alaska allowing couples to opt into community property treatment if they choose. If you are unsure which system applies where you live, check with an estate planning attorney in your state, since the practical impact on your will and marital property can be significant.
What Assets Count as Common Law Property?
In common law states, assets acquired during marriage are generally treated as separate property unless they are intentionally commingled or titled jointly. This typically includes:
- Property acquired by one spouse before the marriage
- Inheritances or gifts received by one spouse during the marriage
- Income generated from that spouse's separate property
- Assets purchased solely by one spouse using their own funds
- Investments or business interests held solely in one spouse's name
Moving Between Common Law and Community Property States
If you move from a common law state to a community property state, the treatment of property you already owned can change. Generally, when you move to a community property state such as California, Washington, Idaho, or Wisconsin, property you bring with you can become subject to that state's community property rules going forward. If you move from a community property state to a common law state, each spouse typically retains their existing 50/50 share of what was accumulated as community property before the move. These transitions are highly fact-specific, so review your situation with an attorney if you relocate across this line.
How Debts Are Handled in Common Law States
Debt in common law states generally follows a similar separate-property logic. A debt is more likely to be considered shared if it benefited both spouses, such as a mortgage on a jointly used home, or if both spouses' creditworthiness was considered when the loan was made, such as a jointly held second mortgage. As the Consumer Financial Protection Bureau explains, a surviving spouse is generally not responsible for a deceased spouse's individual debt unless it was a shared obligation, such as a joint account or a co-signed loan. A debt taken on solely by one spouse for their own purposes, such as a business loan in one spouse's name, is generally treated as that spouse's separate debt.
Common Law Marriage Is a Different Concept
Do not confuse common law property states with common law marriage. Common law marriage is a legal recognition of a marital relationship formed without a formal ceremony or license, and it is recognized in only a minority of states. Whether or not your state recognizes common law marriage has essentially nothing to do with whether your state follows common law or community property rules for marital property.
Prenuptial Agreements in Common Law States
Prenuptial agreements are generally valid and enforceable in common law property states, and they let couples establish their own rules for property division and spousal support in the event of divorce or death, separate from the state's default rules. Enforceability requirements vary by state, and prenups typically do not cover child custody, visitation, or child support, which family courts decide based on the best interests of the child regardless of any agreement. If some of this terminology is new to you, our estate planning glossary explains the basics.
Common Mistakes to Avoid
- Assuming all marital property is automatically co-owned when your state actually treats it as separate
- Failing to keep records showing which assets were acquired before marriage or via inheritance
- Overlooking how a move to or from a community property state affects existing assets
- Confusing common law marriage recognition with common law property rules
- Never updating a will or prenuptial agreement after a cross-state move
How FastWill Handles This
FastWill's online will builder helps you list your separate and shared property clearly so your executor knows exactly what belongs to your estate. If you live in, or are moving to, a community property state, our companion article on estate planning in community property law states explains how the rules differ.
Frequently Asked Questions
What is the main difference between common law and community property states?
In common law states, property is generally owned individually by whoever earned or acquired it. In community property states, assets acquired during marriage are generally owned equally by both spouses regardless of whose name is on the title.
Do most states follow common law property rules?
Yes, the large majority of U.S. states follow common law property principles, while only nine states are community property states.
Does moving to a community property state change property I already own?
It can. Property you bring into a community property state from a common law state may become subject to that state's community property rules going forward, so review your situation with an attorney after a move.
Is a prenuptial agreement enforceable in a common law state?
Generally, yes, though specific requirements vary by state. Prenups typically address property and spousal support but do not cover child custody or support.
Does common law marriage affect how my property is treated?
No. Common law marriage recognition is a separate legal concept from common law property rules and generally has no bearing on how marital property is classified in your state.
