Civil Law Concepts in American Family and Inheritance Laws
“Civil Law Concepts in American Family and Inheritance Law,” that’s the subject of today’s ACTEC Trust and Estate Talk.
This is Margaret Van Houten, ACTEC Fellow from Des Moines, Iowa. Most western legal systems can be classified as either common law or civil law. Common law is the system that developed in England and is prevalent throughout most of the United States and Canada. Civil law is the system that developed out of the Roman legal tradition and is prevalent throughout most of continental Europe and Latin America.
These two systems have influenced each other for centuries, particularly in matters relating to family law and inheritance laws. It is interesting to consider some ways in which the civil law has influenced the common law in the United States. ACTEC Fellow, Professor Elizabeth R. Carter of New Orleans, Louisiana, joins us today to discuss this topic. Welcome, Elizabeth.
Introduction – Civil Law and Common Law
Thanks, Margaret. As a Louisiana attorney and as a law professor at Louisiana State University, the state’s flagship law school, I have a bit of a unique perspective on the law because Louisiana is a mix of common law and civil law jurisdiction. Because of our unique legal heritage, much of Louisiana’s substantive private law, including aspects of family law and inheritance law comes from civil law rather than from the common law. What the folks in other states may not realize is that there’s actually a good deal of civil law influence throughout American law.
Today, I’m going to point out just two of the many examples of civil law influence: inheritance rights of adopted persons and community property.
Inheritance Laws in Community Property States
Let’s start with the inheritance rights of adopted persons. In Roman law in society, adoption was a privilege. Adoption was a privilege both for the adopted person and for his biological family. The adoption bestowed some social prestige on all the parties involved. Augustus, Caligula, and Nero all came to be emperors by the power of adoption. In the Roman tradition, the adopted person was entitled to inherit from the biological family and from the adoptive family, but this did not necessarily go the other way around.
The biological family could not necessarily inherit from the person that had been adopted out. Adoption is a means of finding homes for infants and children is actually an American invention. The Massachusetts Adoption of Children Act of 1851 is largely credited with being the first modern adoption law. Once American law recognized this uniquely American type of adoption, then courts and legislators needed to figure out the inheritance rights of adopted children and their parents. To do so, American courts routinely looked to civil law. In particular, they looked to ancient Roman law and Louisiana law. Based largely on the civil law tradition, American courts decided that adopted persons inherited from their adoptive parents and that their adoptive parents inherited from them. The civil law tradition generally gave superior rights to the adoptive family than to the biological family and American courts and legislatures followed suit. We often take that approach for granted today.
There remains an interesting wrinkle that causes some variation among the states. Can the adopted person still inherit from her biological family? The Roman law and civil law traditions said yes. Most American states, however, rejected that view. Some said it would be unfair to let the adopted person double dip. However, a handful of states do allow double dipping in the great Roman law tradition. Louisiana’s probably the most generous. We allow the adopted person to inherit an intestacy from both her adoptive family and her biological family.
Kansas, Oklahoma, Rhode Island, and Texas also allow some double dipping on the part of adopted persons. Some other states take a more nuanced approach. For example, Alaska, Illinois, and Maine allow the adopted person to inherit from her biological family if it is contemplated by the adoption decree. So, states like Louisiana continue to reflect aspects of that ancient Roman view that adoption was a societal and legal privilege for the adopted person. Now, let’s take a look at community property.
History of Community Property States
Today, nine states have community property as their default legal system for married persons. All the states along our southern border, from Louisiana west to California, are community property states. So, that means Louisiana, Texas, New Mexico, Arizona, and California are all community property states. Three other western states are community property states: Nevada, Idaho, and Washington. These states were generally all community property states since the time of statehood if not earlier. Our ninth community property state, Wisconsin, joined the party in the 1980s.
And, of course, Louisiana, the 18th state to enter the union, was also the first state to enter the union as a community property state. Community property is believed to have come to the civil law and to Spanish law in particular from the Visigoths. In other words, it does not have a Roman law origin. The Visigoths were nomadic Germanic tribes that traveled westward across southern Europe and battled along the way. They eventually settled in what is now Spain. The community property system, as we know it today in the United States and in much of Latin America, is going to be the Spanish flavor, which is traced directly to the Visigoths. Many of the community property states in the United States, in turn, traced their community property system to the fact that they were once Spanish territories. Even in Louisiana, where we have so much French influence in our law, we also have a good deal of Spanish influence in our community property system.
Spanish Influenced Community Property Systems
So, what are the key elements of a Spanish style community property system? First, spouses have concurrent ownership rights in the community property. You go to work and earn one dollar. You and your spouse actually co-own that one dollar equally. That means that if you divorce, you each get fifty cents. And it means that each of you could give away fifty cents at death. Second, the Spanish approach to community property is what is called a ganancial system from the Spanish verb ganar, meaning “to earn,” or a system of acquisitions and gains. It means community property consists of property earned or acquired by the effort, industry, or labor of either spouse during the marriage.
Inheritances, donations, and pre-marital property generally remain separate property. In the US, earnings from separate properties receive varying treatment. The Spanish approach, which is seen in Louisiana, Idaho, Wisconsin, and Texas, says that earnings from separate property are community property. California, in part in an effort to attract wealthy, unmarried women to the state, rejected that approach and created the American rule. Under this rule, earnings from separate properties remain separate. The remaining community property states take that approach. One interesting aspect of community property is that the Spanish style system we’re so familiar with is not the only option.
By way of example, in some parts of the world, you have a universal community property system, where all assets owned by either spouse are community regardless of the time or manner of acquisition. Even if you are not in a community property system, your law has absolutely been impacted by community property.
Examples of Laws Influenced by Community Property System
Ganancial Community Property System
It is hard to overstate the significance of community property to American law. Let me give you just two examples. One is a state law, and one is a federal law. First, the ganancial community property system had a very obvious influence on the equitable distribution laws that apply at divorce in most separate property states. Prior to the equitable distribution laws, the property was divided at divorce according to the title, which tended to put women at a serious disadvantage. The equitable distribution laws in those states classified the property as either marital or nonmarital and instruct courts to divide the marital property between the spouses more or less evenly. Those classification rules were very clearly derived from the ganancial community property systems seen in the American community property states.
Income Tax in Community Property States
Second, community property directly led to the joint income tax return in the United States. The US Supreme Court decided two companion cases in 1930; Poe v. Seaborn and Lucas v. Earl. Poe v. Seaborn essentially said that in a community property state, the husband should only report one-half of his income on his tax return and that his wife should report the other half. Because the husband is the primary earner and because income taxes have a progressive rate structure, this view led to a lower tax liability for the husband than he would have had in a separate property state.
In Lucas v. Earl, spouses in a separate property state tried to achieve the same outcome via a marital contract that entitled the wife to half of the husband’s income. The court rejected this approach for various reasons. As a result of these two cases, the tax liability for some married couples will be significantly less in community property states. Between 1939 and 1947, at least five more states briefly became community property states; Michigan, Nebraska, Oklahoma, Oregon, and Pennsylvania were all briefly community property states in order to reap the tax advantages. But Congress stepped in and told them it wasn’t necessary to actually give women rights to the property to get this tax treatment.
And all those states reverted back to separate property systems. To equalize the treatment between community property and separate property states, the 1948 Revenue Act established the joint income tax return that we really take for granted today. The joint income tax return allows spouses in all states to divide their income between two taxpayers.
So, in conclusion, civil law has had significant impacts on American family laws and inheritance laws. The inheritance rights of adopted persons and community property laws are just two of the many examples of civilian influence in American law.
Thank you, Elizabeth. That was really interesting.
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