When considering the distribution of marital property in the event of death or separation, it’s important to understand the legalities involved. This article provides an overview of how marital property is handled in such circumstances.

Distribution of Property Upon Death

When a spouse passes away, their separate property is distributed according to their will or as dictated by the rules of intestate succession. The distribution of marital property depends on how the spouses share ownership. If the property was held in joint tenancy with the right of survivorship or as tenants by the entirety, the property automatically goes to the surviving spouse. This right is independent of what the deceased spouse’s will might state. However, if the property was classified as tenancy in common, it could belong to someone other than the surviving spouse, as determined by the deceased spouse’s will.

Distribution in Case of Divorce or Legal Separation

If a couple gets divorced or legally separated, the court will decide how to divide the marital properties. Couples can establish a prenuptial agreement before marriage, outlining how marital properties should be distributed after divorce.

Community Property States

States that apply the principle of community property include Louisiana, Arizona, California, Texas, Washington, Idaho, Nevada, New Mexico, and Wisconsin. In these states, all properties acquired during the marriage are considered marital properties. They are owned equally by both spouses (50% each).

Marital Properties Include:

  • Real estate, earnings, properties purchased with earnings, and debts incurred during the marriage.
  • It starts at the establishment of the marriage and ends when the couple separates with the intention of not continuing together. Thus, earnings or debts after this point are considered separate property. Assets acquired before marriage are considered separate property and belong solely to their original owner.

Exceptions to Equal Distribution Rule

  • If a spouse unlawfully takes possession of marital property, either before or during a pending divorce.
  • If a spouse has student loans. In case of divorce, each spouse is responsible for their own student loans.
  • If a spouse has civil liabilities not resulting from activities benefiting the marital properties.
  • Restitution for personal injuries is marital property during the marriage but belongs to the injured spouse after divorce.
  • “Negative assets” refer to a situation where marital debts and liabilities exceed assets. In this case, each spouse’s relative ability to pay the debt is considered to protect creditors.

Individual Properties Include:

  • Properties that belonged to one spouse before marriage.
  • Properties gifted to one spouse before or during the marriage.
  • Properties inherited by one spouse before or during the marriage.

Marital Properties Include:

  • Money both spouses earned during the marriage.
  • Properties bought with money both spouses earned during the marriage.
  • Separate properties that have been mixed with marital properties and are indistinguishable.


  • Marital Property: A spouse buys a car with earnings from a successful medical career. The car is marital property and belongs equally to both spouses.
  • Individual Property: A spouse owns a valuable antique acquired before marriage. This antique is exclusively the property of that spouse and is not marital property unless they choose to share it with their spouse.

Understanding how marital property is distributed in the event of death or separation is crucial. It’s advisable to consult with an experienced attorney like Sandra Gomez, who offers a free consultation to guide you through these complex matters.

Contact Sandra Gomez for Legal Assistance:

  • Phone: (713) 980-9012
  • Visit: sandragomezlaw.com

Navigating property distribution can be complex, but with the right legal assistance, you can ensure your rights and interests are protected.