Marital Property

Statutory share statute gives surviving spouse a portion of the estate of the decedent

Applying the terms of a long-existing state statute, the Supreme Judicial Court of the Commonwealth of Massachusetts affirmed that a second spouse could take 1/3 of her deceased husband's estate when he failed to rewrite his will after his second marriage and his will had left his entire estate to his first wife. ...

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Bankruptcy law preempts state tenancy by the entirety law

The Bankruptcy Code allows forced sale of property owned by a married couple as tenants by the entirety against the will of the non-debtor spouse. In re Green, 2018 WL 4944988 (Bankr. E.D. Mass. 2018) (interpreting 11 U.S.C. §363(h)).

Tenancy by the entirety interests can be sold to satisfy debts of one spouse

A bankruptcy court in Massachusetts has ruled that state tenancy by the entirety law is preempted by  the Bankruptcy Code, §363(h)–(j), interpreting federal law to authorize the forced sale of tenancy by the entirety property over the objections of the non-debtor spouse to satisfy the debts of the debtor spouse. Desmond v. Green, 2018 Bankr. LEXIS 3136 (Bankr. D. Mass. 2018).

While real property held as tenancy by the entirety cannot be conveyed absent consent of both spouses, funds held in a bank account can be withdrawn by either spouse and, upon withdrawal, cease to be entireties property

The Supreme Court of Tennessee overruled prior cases and adopted the Arkansas approach that allows spouses that own bank account as tenants by the entirety are free to withdraw funds unilaterally (without consent of their co-owner) and that moneys so withdraw become the individual property of the spouse that withdrew the funds. This contrasts with real property which neither spouse may convey without the consent of the other....

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Can an owner or inhabitant of real property give police the right to search property when a co-owner or coinhabitant objects?

The Appeals Court of Massachusetts held that the police could search a closed suitcase in a common closet of a bedroom when given permission to do so by the defendant's coinhabitant. Commonwealth v. Hernandez,93 Mass. App. Ct. 172, 2018 Mass. App. LEXIS 48 (Mass. App. Ct. 2018). This ruling was based on traditional...

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Veteran's retirement pay can be distributed as community property but not so for disability benefits

In Howell v. Howell, 197 L. Ed. 2d 781 (2017), the Supreme Court interpreted and applied a federal statute that allows veterans' retirement pay to be distributed on divorce as community property but does not allow distribution of disability benefits. 10 U.S.C. §1408(c)(1), §1408(a)(4)(B). Read more about Veteran's retirement pay can be distributed as community property but not so for disability benefits

Heirs under intestacy statute include adopted children

In a decision one might think was unnecessary today, the Maine Supreme Judicial Court ruled that the "children" who inherit under state intestacy statutes include adopted children. Fiduciary Trust Co. v. Wheeler, 132 A.3d 1178, 2016 ME 26 (Me. 2016). The issue was raised because an earlier court decision interpreting the decedent's will had held that a separate clause leaving property to the...

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Supreme Court finds fundamental liberty and equality interests in extending right to marry to same-sex couples

On June 26, 2015, the Supreme Court held in Obergefell v. Hodges, — U.S. — (2015), that the Constitution’s due process clause protects liberty interests that include personal choices central to individual dignity and autonomy and that those include the right to marry, including someone of the same sex. The Court also held that it violates equal protection of the laws to allow male-female couples to marry but to deny that right to same-sex couples. For the same reasons, states must recognize same-sex marriages validly...

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Cert denial brings same-sex marriage to many more states

The Supreme Court's refusal to take certiorari in a number of cases means that same-sex marriage will become legal in Indiana, Oklahoma, Utah, Virginia and Wisconsin, and soon afterwards in Colorado, Kansas, North Carolina, South Carolina, West Virginia and Wyoming bringing the total number of jurisdictions to 31 (including the District of Columbia) plus at least 5 Indian nations. In addition a ruling by a three judge panel in the 9th Circuit on Oct 7, 2014 will likely open up Nevada and Idaho as well, making a total of 33 jurisdictions. States that still ban same-sex marriages...

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Oregon and Pennsylvania join the states with same-sex marriage

For the first time, federal court rulings seem to have brought same-sex marriage the states. Most of the states that have recognized such marriages have done so through state court rulings or legislation. However, federal court rulings have increasingly found same-sex marriage bans to violate the equal protection clause of the federal constitution. Most such rulings of federal district courts are on appeal and most were stayed during that appeal. However, the governors of both Oregon and Pennsylvania declined to appeal the rulings and no other parties appear to have been given standing to...

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