The Killing of Community Property

In this article, a case will be made that certain provisions in ERISA, the Internal Revenue Code, and certain federal decisions, such as the U.S. Supreme Court’s holding in the Boggs case, result in a massive taking of property that would otherwise be owned by married persons living in community property states. When one critically analyzes these federal statutes, cases, and rulings, this sweeping and wholesale preemption of community property laws appears to rest on federal goals that are often weak or flimsy in comparison to property ownership rights. In some cases, decisions preempting community property are based on imaginary fears. A common law bias pervades these laws and decisions. It is important for individuals in positions to make or interpret laws, such as members of Congress, federal judges, and federal agents, to understand at least the basics of community property law. It is submitted that community property law is a more enlightened and egalitarian system of marital property than marital property systems in the majority of states. Therefore, community property law deserves more respect than it has received throughout history.