Family Law
Fall 2005
Professor Barbara Glesner Fines
University of Missouri - Kansas City School of Law

Course materials intended for classroom use at the UMKC School of Law – Do not use for legal advice.

Questions and Answers about Property Ownership During Marriage in Missouri

1.                   Historically, how did married couples own and manage property?

As you read in the text on pages 34-41, historically, upon marriage a woman entered the condition of “coverture” in which her legal identity was merged with that of her husband. He acquired exclusive ownership of all personal property she owned or acquired before or during the marriage. In Missouri, any real property either of them owned before the marriage or that was acquired during the marriage was presumed to be held as tenants by the entireties – that is, it was owned by the marital entity rather than either spouse individually, but husband had the exclusive right to control the property.

 

Married Women’s Property Acts, enacted by the states beginning in the mid 1800s. Missouri first enacted its act in 1909 (See R.S. Mo. 451.290 Wife deemed femme sole, when.). After these acts, women acquired the right to contract and to own property separate from their husbands. Some states held that these acts eliminated the tenancy by the entireties, but about half retained it in some form. Sawada v. Endo, 561 P.2d 1291 (Hawaii 1977).

 

2.                   What are the two primary systems of property ownership during marriage in the United States today?

 

The state laws governing property ownership and marriage generally fall into two groups: community property states and common law property states. Community property systems are found in those states whose early legal development was influenced by the civil law systems of Spain and France (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington) and in Wisconsin, which adopted a community property system by legislation. In community property systems, the marriage is treated very much like a business entity. Each spouse’s income during the marriage belongs to the community (so that, for example, IRS rules treat this community income as if each spouse earned half of it). Likewise, any property acquired during the marriage (with some exceptions) is community property. We will study community property systems in greater detail in our examination of divorce, because the community property system determines ownership during the marriage, at death and upon divorce.

 

In the rest of the states (usually referred to as “common law” states), the law that governs ownership of property during the marriage is not the same (indeed, can be dramatically different) than the law that governs ownership at divorce or at death. Since Missouri is a common-law state, we will examine Missouri law as an example of one common-law state’s approach to ownership and management of property during the marriage. In common law states, a spouse might be said to own one set of property during the marriage, but upon divorce, the spouse might be deemed to have right to a different set of property. Generally, in common law states, ownership of property during the marriage is determined by the same rules that govern anyone’s ownership of property – that is, title. So in a common law state, each spouse owns their own earnings and anything they acquire with those earnings or otherwise acquire (unless they indicate some intent to share the ownership with their spouse).

 

Let’s take an example. Mary and Harry are married. Mary is a homemaker with no income. Harry works as a manager of a business. Let’s say that Harry controls all the family’s finances. He deposits his paychecks into a checking account in his name only and gives Mary a cash allowance. The family house and car are both in his name only, as are retirement funds and investment accounts. What does Harry own? Everything. What does Mary own? Only that which she has purchased with the cash Harry has given her. You will see that that is not how the statutes governing divorce would characterize the ownership of the property, but during the marriage, Harry owns his own income and everything that income acquires unless he intends (or the law presumes he intends) to share.

 

Now let’s suppose Harry deposits his paychecks into a joint checking account and that the house and car purchases are in both names. Now a court would deem the money in the checking account (and anything purchased with those funds) along with any jointly titled property as belonging to both spouses. Just how do they share their ownership of that property? Again, it depends in part on how the language used to create those ownership interests. You will recall from your basic property class that the basic co-tenancies are joint tenancy and tenancies in common (if you need to review the basics of tenancies, the Missouri Bar provides a tidy overview that you might find useful to refresh your knowledge). Nearly half the states, including Missouri, have also retained the tenancy by the entireties as a form of ownership by the marriage, rather than by the spouses themselves. Entireties is recognized in Arkansas, Delaware, District of Columbia, Florida, Hawaii, Illinois, Indiana, Kentucky, Maryland, Massachusetts, Michigan, Missouri, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, and Wyoming.

 

3.                   What is the effect of holding property as a tenancy by the entirety?

 

Because tenancy by the entireties is a special form of co-tenancy reserved for married couples only, we will spend some time looking in more detail at this form of co-ownership by spouses. The spouses holding property as tenants by the entireties, hold the property as an undivided entity. Theoretically, they don’t each own 50%. Rather the marriage owns 100% of the property. In Missouri, neither spouse can sell tenancy by the entireties property without the consent, agreement or acquiescence of the other spouse. Zahner v. Voelker, 11 S.W.2d 63 (Mo. App. 1928). One of the main advantages of tenancy by the entireties is that the property held in this form cannot be subject to either spouse’s individual debts (but it can be subject to joint debts). Thus, most of the contemporary case law on tenancy by the entireties tends to involve bankruptcy or some other creditor interest. To read more about the treatment of tenancy by the entireties in bankruptcy, see United States Bankruptcy Court JudgeEugene Wedoff’s outline on this issue.

 

4.                   How does one create a tenancy by the entireties

 

In Missouri, any conveyance of property to more than one person ordinarily is presumed to create a tenancy in common. R.S. Mo. 442.450 But, this presumption does not apply to a conveyance is to a married couple. In that instance, the conveyance is presumed to create a tenancy by the entireties unless the couple clearly indicate otherwise. Nelson v. Hotchkiss, 601 S.W.2d 14 (Mo. 1980) (presumption that a conveyance to husband and wife created an estate by the entirety could be overcome only by a clear and express declaration). One spouse can convey his separate property to himself and his spouse to create a tenancy by the entirety. R.S. Mo. 442.025 Conveyance to self and others to create joint estate Spouses can create this tenancy even if their purpose in the conveyance is to shield property from creditors. Ronollo v. Jacobs, 775 S.W.2d 121(Mo. 1989)

 

For bank deposits, a similar presumption applies. R.S.Mo. 362.470(5). Funds deposited to an account held by a husband and wife are presumed to be held by entireties, regardless of which party contributes funds and even if each party can individually draw on the account. The presumption of ownership by the entirety of bank accounts in names of husband and wife is rebuttable, but evidence to overcome the presumption must be so strong, clear, positive, unequivocal and definite.

 

Finally, any property that is purchased with entireties funds or funds that are traceable to entireties property retains the entireties ownership. So if we go back to Harry and Mary, we discover that, unless they have clearly indicated otherwise, their jointly titled house, car and bank accounts are held in tenancy by the entirety, as is any property either has purchased with funds from the bank accounts.

 

5.                   Once property becomes entireties property, how can one change tenancy by the entireties property into individually-titled property?

 

Divorce, severs property and any resulting co-ownership is as tenants in common. Death also changes a tenancy by the entirety (the surviving spouse continues to hold title to the full estate.). Finally, spouses can change property from tenancy by the entireties into separate ownership or into other forms of co-tenancy by “consent, agreement or acquiescence." So if Mary takes money out of the joint bank account and buys stock in her own name, that stock would be Mary’s alone if Harry had consented, agreed or acquiesced in that purchase with the understanding that the stock would be her individual property.

 

6.                   Who controls entireties property?

 

In Missouri, both husband and wife have the right to manage the property. Neither can dispose entireties property in whole or part without the consent, acquiescence or agreement of the other. Coffey v. Coffey, 485 S.W.2d 167 (Mo. 1972) Neither spouse has exclusive management power or authority. Kenny's Tile & Floor v. Curry, 681 S.W.2d 461 (Mo. 1984) Moreover, one spouse is not presumed to act as the agent of the other in dealing with entireties property merely because they are married. Fuller v. Lloyd, 714 S.W.2d 698 (Mo. 1986).

 

PLEASE REMEMBER – These doctrines govern the ownership and management of property DURING AN INTACT MARRIAGE. Who “owns” property for purposes of distribution at divorce or inheritance at death may be quite different.

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