Why is Washington A Community Property State?

Community Property is a legal doctrine on how assets acquired in a marriage should be distributed.  It is notably different than other marital property doctrines in most of the United States in that it does not look to see who earned the assets during the marriage; marital assets are coequally owned unless expressly rebutted, while assets owned prior to the marriage remained separate of the marriage if they were not commingled with community property.  Community Property is the doctrine used by nine of the states in America, usually western states.

Washington, as many western states, made the decision on choice of law informed by the choice of their largest neighbor, California, both for ease of access for legal professionals and also as they saw what worked and did not work.  So why did California choose to enact a Community Property?  In this case it was a mix a few things:

  1. Spanish Law – California, like Texas, was formerly administered by Spain, and then subsequently Mexico. Community Property law is an extension of how Spanish law treated marital assets; and while this was not how traditional English law treated assets marital assets, officials were familiar with it from their territorial experience.  Texas, being admitted as a state prior to California, adopted it as their legal doctrine first, and saw that it worked broadly with little friction with traditional English common law.
  2. The Gold Rush and Protection from Creditors – The discovery of gold brought about a large horde of speculators and a wild frenzy of get rich quick schemes. Men borrowed against their assets and rushed across the country to make their fortune.  The problem, of course, being that they often pledged property their wife had before the marriage to fund their scheme.  Recognizing this as inequitable, California government officials determined that the Spanish system of recognizing property owned before the marriage as separate of the marital community granted protection to wives who possessed assets before marrying their partner.
  3. Attract Women –We have records of delegate’s consideration of what to include in the state’s constitution. Being a frontier state, there was a shortage of marriage prospects for the men who moved across the country to find their fortune.  The Spanish system provided greater protection of women’s separate property; Delegate Halleck of the Convention is memorialized as stating: “it is the very best provision to get us wives that we can introduce into the Constitution.”  Another delegate argued that adopting the Spanish law would attract not just women, but “women of fortune” who would come knowing their property would be protected.

Community Property is a unique circumstance in that outside of Louisiana, it is one of a few instances of civil (continental European) law used in our country, instead of the more familiar English system of common law.  A mix of the western territories being formerly Spanish in character, and a desire to attract women for marriage prospects led to the adoption of this foreign system of law.

Primary sources used in research:

Caroline B. Newcombe, The Origin and Civil Law Foundation of the Community Property System, Why California Adopted It and Why Community Property Principles Benefit Women, 11 U. Md. L.J. Race Relig. Gender & Class 1 (2011). Available at: https://digitalcommons.law.umaryland.edu/rrgc/vol11/iss1/2

Beyond the “Black Hole”-A Historical Perspective on Understanding the Non-Legislative History of Washington Community Property Law, Gonzaga Law Review Vol 39:1, Page 7 (2003). Available at: https://blogs.gonzaga.edu/gulawreview/files/2011/01/Cannon.pdf

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Jarrod Hays is the founder of Skyview Law. He is licensed to practice law in Washington State and the Western District of Washington State Federal Court.

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