Ohio National Financial Services, Estate Planning

The theory of community property is that each spouse has an undivided one-half interest in the property during marriage. In most community property states, both spouses have an equal right and duty to manage community property, but neither spouse has the right to give away or convert to separate use any community property without the other spouse's consent. Each, however, may freely dispose of his or her own share of community property at death.

It is possible for one spouse to make a gift of his or her community property interest to the other spouse, and thus to make the property the separate property of the donee spouse, but the intention to do so must be clear. Such intent will not ordinarily be inferred from the mere fact that title to property was taken in the name of one of the spouses, particularly if that spouse is the husband.

There is a presumption that all property held by husband and wife is community property. If separate and community funds are co-mingled in such a way that the separate funds cannot be traced, the whole amount (or the property bought with it) becomes community property.

In the event of divorce, absent any agreement to the contrary, each spouse becomes a tenant in common of his or her share of the former community property. That is, death or divorce dissolves the community.

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