A client moves from Texas to New York. Another inherits assets in Florida. A third is going through a divorce. In each case, the same question quietly determines the outcome: is the asset Separate Property (SP) or Community Property (CP)?
1. The Two Systems: Community vs. Common Law
The U.S. is divided into two primary legal frameworks for marital property. Understanding which applies to your client is the first step in any plan.
Community Property States (The “Partnership” Model)
- Primary States: AZ, CA, ID, LA, NV, NM, TX, WA, WI.
- Philosophy: Marriage is a 50/50 partnership. Most assets acquired during marriage are owned equally by both spouses, regardless of whose name is on the title.
- The “Double Step-Up”: Under IRC § 1014(b)(6), when one spouse dies, 100% of the community property receives a step-up in basis to fair market value. This can wipe out massive capital gains for the survivor—a benefit not automatically available in common law states.
Common Law / Separate Property States (The “Title” Model)
- States: The other 41 states (e.g., NY, FL, IL, OH).
- Philosophy: Ownership is generally determined by how the asset is titled. If it’s in the Husband’s name, it’s his property.
- The “Single Step-Up”: At death, typically only the deceased spouse’s interest in the property (usually 50% if held as joint tenants) gets a basis step-up.
2. Managing Separate Property in a Joint World
A common pain point for advisors is managing “Separate Property”—assets owned before marriage or received via gift/inheritance.
The Gold Standard for Advisors: Keep it separate. If a client receives a $1M inheritance and deposits it into a joint checking account used for household bills, that asset has likely been commingled. In many jurisdictions, once assets are commingled, they are presumed to be marital or community property, losing their protection in a divorce or from a spouse’s creditors.
How Wealth.com Solves This:
Our platform is designed to accommodate both property types within a single Joint Revocable Trust structure.
- Delineation: Our trust agreements include a “Character of Property” clause. As long as the underlying accounts are properly labeled, the trust respects the asset’s original character (SP vs. CP).
- Naming Conventions: To prevent accidental commingling, our Trust Owner’s Manual guides clients on how to title accounts (e.g., “Jane Doe, Separate Property Sub-Trust”) to maintain legal boundaries while keeping everything under one “roof.”
3. The “Tax-Only” Community Property Trap
Clients in common law states often envy the “double step-up” tax advantage. This has led to the rise of Community Property Trusts (CPTs) in “opt-in” states like Alaska, Florida, Kentucky, South Dakota, and Tennessee.
While these trusts aim to grant common-law residents the tax benefits of CP, advisors must be wary:
- Legal Consequences: You cannot usually opt-in to the tax benefits without also opting-in to the legal burdens. In California, for example, transmuting property to CP means it is subject to a 50/50 split in divorce—no “tax-only” exceptions.
- Enforceability: Agreements that attempt to claim CP for the IRS but disclaim it for creditors or divorce are legally fragile. Courts often find that if you tell the IRS it’s community property, it’s community property for all purposes.
4. When the Rules Change: Relocation
One of the most overlooked risks is “migratory property.”
- CP to Common Law: If a couple moves from Texas (CP) to Florida (Common Law), their assets usually retain their community property character (and the double step-up potential) unless they affirmatively change them.
- Common Law to CP: Conversely, many CP states use “Quasi-Community Property” rules, which treat common law assets as community property if they would have been CP had the couple lived there originally.
5. Advisor Summary Table
| Issue | Community Property States | Common Law / Separate Property States |
| Step-up in Basis | 100% of CP gets a step-up at 1st death (IRC § 1014(b)(6)). | Only the decedent’s portion gets a step-up. |
| Creditor Access | Creditors can often reach all CP for one spouse’s debt. | Creditors generally only reach assets titled to the debtor spouse. |
| Divorce | Often a strict 50/50 split of all community assets. | “Equitable Distribution” (fair, but not always equal). |
| Best Strategy | Use Transmutation Agreements sparingly and with counsel. | Consider Opt-In Community Property Trusts for high-basis assets. |
Sources:
- Internal Revenue Service. (2024). Publication 555: Community Property.
- Cornell Law School. (2026). 26 U.S. Code § 1014 – Basis of property acquired from a decedent. Legal Information Institute.
- American College of Trust and Estate Counsel (ACTEC). (2025). What is Community Property? Resource Center.
- California Legislative Information. (2026). Family Code Sections 850–852: Transmutation of Property.
- Goosmann Law Firm. (2025). Community Property vs. Separate Property from an Estate Planner’s Perspective
