In community property states, most income and assets acquired during marriage belong equally to both spouses, regardless of whose name is on the title. Only nine states follow this system. Your will still needs to account for your half of community property plus any separate property you own outright.
Estate planning looks different depending on whether you live in a common law state or a community property state. In community property states, marital property law starts from the assumption that spouses are equal co-owners of what they build together, and that assumption changes how your will should be written and what you can actually give away.
What Is Community Property?
Community property is generally defined as property that spouses own together. In a community property state, everything a couple acquires during the marriage is treated as owned 50/50 by both spouses, and the same is generally true of debt accumulated during the marriage. Compare this to a common law state, where property acquired by an individual spouse, even during the marriage, is generally treated as that spouse's separate property. Imagine a couple where the house and both cars are titled in one spouse's name alone. In a common law state, if that spouse dies and leaves everything to charity, the surviving spouse can typically elect against the estate to claim a share, a right known as an elective share; Florida's elective share statute is one example, guaranteeing a surviving spouse a portion of the estate regardless of what the will provides. In a community property state, the surviving spouse already owns half of everything acquired during the marriage, regardless of whose name is on the title, so the analysis starts from a very different place.
Which States Follow Community Property Rules?
Only nine states are community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Alaska is an opt-in state, meaning spouses there can agree in writing to have community property rules apply to some or all of their assets, even though Alaska is not automatically a community property state.
What Assets Are Considered Community Property?
Community property generally includes:
- Earned income: the IRS defines earned income as all taxable income and wages received from working for someone else, for yourself, or from a business or farm you own, and this income is generally community property when earned during the marriage
- Assets purchased with community income: if income earned during the marriage is used to buy a house or other asset, that asset is typically community property
- The marital home: generally community property if purchased during the marriage, even if only one spouse's name is on the title
- Rental income: money earned from property purchased with community income generally belongs to both spouses
- Debts: debts acquired during the marriage are typically split equally, even if only one spouse incurred them
- Damages and settlements: money won in a lawsuit during the marriage is usually treated as community property
How Community Property Affects Your Will
If you live in a community property state, you generally cannot leave your entire estate to someone other than your spouse, since half of the community property already belongs to your spouse regardless of what your will says. You can leave your half however you choose. Some states allow you to add a right of survivorship provision that lets community property pass to a surviving spouse outside of probate, so check your specific state's rule on this.
Key Considerations When Writing a Will in a Community Property State
- Asset distribution: your will controls how your separate property and your half of community property is distributed; without a will, your state's intestacy law decides instead
- Executor appointment: name someone to manage your estate, pay debts and taxes, and carry out your instructions
- Guardianship designations: if you have minor children, your will lets you name a guardian to care for them if both parents pass away
- Specific bequests: you can leave specific items or charitable gifts from your half of community property or your separate property
- Blended family considerations: if you have children from a previous relationship, your will should address how your share of community and separate property is divided among them
Other Estate Planning Tools to Consider
A will is central, but other tools often complement it. A trust can help manage assets during your lifetime and after death, potentially avoiding probate and protecting beneficiaries with special needs. A durable power of attorney designates someone to manage your finances if you become incapacitated. Advance health care directives, including a living will and health care power of attorney, outline your medical preferences and designate someone to make decisions if you cannot. Our estate planning glossary defines each of these terms if you need a refresher before drafting.
Common Mistakes to Avoid
- Assuming you can leave 100 percent of a jointly acquired asset to someone other than your spouse
- Failing to distinguish separate property, like a premarital inheritance, from community property
- Not addressing debt that was incurred during the marriage in your overall estate plan
- Forgetting to check whether your state allows a right of survivorship provision
- Never revisiting your plan after a move to or from a community property state
How FastWill Handles This
FastWill's online will builder helps you separate your community and separate property clearly, so your executor knows exactly what falls under each category. If you are moving from or to a common law state, our companion guide on estate planning in common law states explains how the rules differ.
Frequently Asked Questions
Can I leave all of our shared property to someone other than my spouse?
Generally, no. In a community property state, your spouse already owns half of the community property, so your will can only control your own half plus any separate property you own.
Is Alaska a community property state?
Alaska is an opt-in state. Spouses can agree in writing to treat some or all of their property as community property, but it does not apply automatically.
How is debt handled in a community property state?
Debt incurred during the marriage is generally treated as shared, even if only one spouse's name is on the account, similar to how community property assets are shared.
Does a community property state avoid probate automatically?
No. Some states allow a right of survivorship designation that can bypass probate for community property, but this is not automatic everywhere, so check your state's specific rule.
What happens to property I owned before the marriage?
Property owned before marriage is generally treated as separate property in a community property state, as long as it was not commingled with community assets.
