which type of state you live in generally determines what is considered to be marital property 
most states are common law property states the common law system provides that property acquired by one member of a married couple is owned completely and solely by that person under this legal framework if the title or deed to a piece of property is put in the names of both spouses the property belongs to both spouses if both spouses names are on the title each owns a one half interest if a wife buys a car and puts it only in her name for example the car belongs to her only if she buys the car and puts it in both her and her husband s names however the car belongs to both of them 2under common law when one spouse passes away their separate property is distributed according to their will or according to probate if there is no will in effect 3 how this distribution pans out depends on which type of legal ownership the spouse has in any marital property if they own property in joint tenancy with the right of survivorship or tenancy by the entirety the property goes to the surviving spouse this right is independent of what the deceased spouse s will says however if the property was owned as tenancy in common then the property can go to someone other than the surviving spouse per the deceased spouse s will not all property has a title or deed in this case generally whoever paid for the property or received it as a gift owns it in a legal separation or divorce in a common law state the court can decide how marital property is divided according to its laws 1arizona california idaho louisiana nevada new mexico texas washington and wisconsin are all community property states these nine states follow the rule that all assets acquired during a marriage are considered community property that is property of both spouses according to the internal revenue service the states of tennessee and south dakota also have passed elective community property laws along with alaska and the commonwealth of puerto rico 45alaska has an opt in community property law that allows such a division of property providing both parties agree tennessee south dakota and the commonwealth of puerto rico have passed similar laws 65marital property in community property states is owned by both spouses equally this marital property includes earnings all property bought with those earnings as well as all debts accrued during the marriage earnings and debts acquired before the marriage are separate property as is an inheritance of only one spouse although the couple may co mingle property if they choose 1 couples residing in community property states have to account for their community income as well as their separate income if they file separate federal tax returns when one spouse dies title of joint assets goes to the surviving spouse community property begins at the marriage and ends when the couple physically separates with the intention of not continuing the marriage therefore any earnings or debts originating after separation are considered separate property marital property and divorceif the couple divorces or obtains a legal separation and the former spouses can t decide how to divide their marital property a court will decide for them in non community property states assets are divided according to equitable distribution in community property states there are some exceptions to the equal division rule including where a spouse misappropriates marital property before or during a divorce 1of course the couple can enter into a prenuptial agreement before the marriage explaining how to distribute the marital property upon divorce usually if the prenup is valid and doesn t violate federal or state laws it will be followed even in community property states 