Estate Planning Journal: First Comes Love, Then Comes Marriage: Cohabitation as a Framework for Conflicts Between Community Property and Common Law Marriage (January 1, 2022)

Ana Mitchell Córdova, of the Estate Planning Journal, has made available for download her article “First Comes Love, Then Comes Marriage: Cohabitation as a Framework for Conflicts Between Community Property and Common Law Marriage”, published in the Estate Planning Journal. The abstract is as follows:

In 2015, the Supreme Court of the United States legalized same-sex

marriage.1 This occasion was momentous, but the decision also led to

numerous other issues related to marriage and property.2 A big question was

whether Obergefell would apply retroactively or prospectively because both

options would have significantly different impacts on property distribution.3

In the intervening time, precedent has indicated that Obergefell is applied

retroactively, but this precedent does not resolve all issues related to the

interplay between marriage and property.4 Texas happens to be the only state

in the entire United States that possesses both community property and

common law marriage systems, which can complicate property distribution.5

Obergefell’s impact raises even more thorny issues to consider.6

The remainder of this introduction will begin to address key concepts in

Texas law, including separate property, community property, the homestead,

and how marriage is organized.7 Part II will present a hypothetical fact

situation that incorporates these concepts and produces problems related to

community property, common law marriage, and property distribution.8 Part

II also discusses consequences that may arise from these problems and the

lack of a clear solution for them.9 Part III takes a deeper dive into community

property as a system of property organization, its history, how it works in

Texas, and how it impacts property distribution upon death in Texas.10 Part

IV similarly addresses common law marriage in more depth, its history,

theories for its adoption, and efforts to abolish it.11 Part V summarizes the

sociopolitical and legal context surrounding how people choose to live

together as well as the negative sentiment towards and negative treatment of nse as a framework through which to examine formal marriage, common

law marriage, and other ways

people organize their relationships.13

Additionally, Part VI analyzes different methods of recognizing relationships

and how other jurisdictions grant property rights according to these

methods.14 Part VII considers all the aforementioned concepts and offers a

solution to the problems created by the hypothetical, and lastly, the

conclusion in Part VIII reviews main points and this Comment’s goals.15

To read the full article, click: “First Comes Love, Then Comes Marriage: Cohabitation as a Framework for Conflicts Between Community Property and Common Law Marriage”

Posted by Marin Larkin, Associate Editor, Wealth Strategies Journal.

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