Community property

What it means

In a community property state, income earned and property bought during a marriage is generally owned half by each spouse, regardless of whose name is on it. What each brought into the marriage, and what either inherited or received as a gift, generally stays separate.

On a death, the surviving spouse already owns their half. Only the decedent's half is part of the estate.

Some community property states also allow a couple to hold property "with right of survivorship", which combines the tax treatment with the probate avoidance.

Why it matters

It changes what is in the estate, and therefore whether probate is needed and what a small-estate threshold is measured against.

It also changes the tax position: in a community property state, the full value of a jointly held asset may receive a new basis on the first death rather than half of it.

When you are likely to meet it

• When a married person dies in one of these states.
• When a couple moves between a community property state and one that is not.
• When a small-estate threshold is being measured.

How this varies by state

Whether a state is a community property state at all, and what it treats as separate property, are set by state law. Sahvelo names the rule on the pages of the states it has published and does not generalize it to the others.

Related terms

• Augmented estateA wider pot than the probate estate, used to work out what a surviving spouse may claim.
• Elective shareA surviving spouse's right to claim a minimum portion of the estate, even if the will leaves them less or nothing.
• EstateEverything the person owned at the moment they died, treated as one thing that has to be settled.
• Joint tenancy with right of survivorshipA way two or more people own something together where, when one dies, the others simply own it — with no probate.
• Naked ownershipOwning something in Louisiana that somebody else has the right to use.
• Probate assetSomething owned in the deceased person's name alone, with nobody named to receive it.
• Separate propertyIn a community property state, what belongs to one spouse alone — usually what they brought into the marriage, and what they inherited or were given.
• Step-up in basisThe tax rule that resets an inherited asset's value to what it was worth on the date of death.
• SuccessionLouisiana's word for the whole of what other states call probate — and for the estate itself.
• Tenancy by the entiretyA form of joint ownership available only to married couples in some states, with survivorship and unusually strong protection from one spouse's creditors.
• Tenancy in commonCo-ownership where each owner has their own share, and that share passes to their heirs rather than to the other owners.
• UsufructA Louisiana right to use property and take its income, while somebody else owns it.
• ComminglingMixing separate property with shared property so thoroughly that it stops being possible to tell them apart.
• Marital propertyProperty treated as belonging to the marriage rather than to either spouse alone.
• Prenuptial agreementA written agreement signed before a marriage that changes some of the financial and property rules the marriage would otherwise bring with it.

Sahvelo guidance that uses this

• Do I need probate?