Visigoths and the Mercer Girls: How Community Property Came To Washington State

In honor of the close of Women’s History month, it seemed a good time to share a quick primer on the origins of community property law in Washington State and its connection to women in Washington.

What is community property?

Community property is property owned by both spouses equally. Separate property is property owned only by one spouse.

Community property is equally owned by both spouses in undivided one-half interests. All assets acquired during married are community property, except inheritances or gifts to one spouse or certain personal injury damages or any other property where a spouse can demonstrate the property is, or originated from, separate property.  Spouses can also agree certain assets are community property (often through a community property agreement when they marry). And spouses can commingle their separate property in such away that it cannot be distinguish from community property and therefore becomes community property.

Separate property includes:  assets owned before marriage; gifts or inheritances; certain damages for personal injuries; assets the spouses agree are separate property; earnings / wages when living separate and apart; and the proceeds, like rents or interest, earned from separate property.

Here is an example:  A spouse’s house that they own prior to marriage is separate property. The rental income they earn from the house during marriage is separate property. And the $10,000 they received during marriage through their parent’s Will and used to maintain and improve the house is separate property. However, they could commingle the house with community property by using community property to pay for or improve the house (it is possible the mixing of property could be traced and still keep the house separate). Or they could sign a community property agreement after marrying making the house community property.

Why do we have community property in Washington?

As I learned in my community property class back in law school, the deep origins of community property can be traced to the Visigoths and their basic understanding that the spoils of any pillaging and plundering done by spouses together were divided equally. A partnership. This became part of the Roman civil law tradition. By contrast, the English tradition generally viewed women as in need of protection or as chattel (property), and once a man and woman were married the woman’s property became her husband’s. This common law approach developed throughout much of the United States which adopted the English common law tradition. The civil law tradition found in Spain and France viewed marriage as a civil contract where both parties came into it as equals and created a new relationship, and it was adopted in part by some U.S. states.

Ultimately community property law flowed from this civil law tradition, with community being property acquired by labor during marriage, flowing from community property during marriages, or converted during marriage into community property. Property acquired in some other fashion is separate property, such as that acquired prior to marriage or property flowing from separate property. (See W. DeFuniak and M. Vaughn, Principles of Community Property (2^nd Ed) (1971), for a full treatise on this history.)

Most community property states are in the western U.S.:  Washington, California, Nevada, Arizona, Idaho, New Mexico, Texas, Louisiana and Wisconsin. And, as I first learned in my law school course, this was no mistake. Not only were the western states heavily influenced by the earlier migrants to the western U.S. – the Spanish – but community property became one of a number of legal/property marketing tools to get women to migrate west where most “American frontiersmen” were men. Women simply had more rights if they had equal rights to property shared with their spouses. Strong, adventurous women were viewed as more likely to be enticed by these laws.

Specifically in Washington, a man named Asa S. Mercer set about to bring women to the territory. He made two trips back to eastern states to recruit women to come live in western Washington, in 1864 and 1865. And he succeeded, ultimately encouraging and convincing just over 200 women. Then soon after, with little fanfare, the Washington Territory legislature passed community property law in 1869. There is a good summary of Mercer’s exploits in a Gonzaga Law Review article found here: https://blogs.gonzaga.edu/gulawreview/files/2011/01/Cannon.pdf. But there is also a TV show about the Mercer Girls from the 1960s called Here Come the Brides which is currently available on Amazon and BestBuy or at your local library, which is how I first found it.

Overtime, community property law in Washington certainly became more complex and continues to develop today. If you were, are, or are planning to be married in Washington State – or any of the community property states – community property laws may come into play and not just when one is facing a dissolution of marriage. Community property laws can impact real estate transactions, probate and estate planning, dissolution, and even what property might be at risk in a civil lawsuit.