What is community property and where does California’s community property law come from?


Most Americans are comfortable with the concept of community property. Today, there are nine states which generally follow community property principles: Arizona, California, Idaho. Louisiana, New Mexico, Nevada, Texas, Washington, and Wisconsin.

What is community property?

In general, the community property system is based on a sharing or partnership theory of marriage, which presumes that each spouse contributes equally to assets gained during the marriage.

In California, this theory has been codified (or made law) by the California Family Code Section 760 which states:  “Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property.”

In California, upon dissolution of marriage (also known as divorce), these assets are generally divided equally among the parties.

Where does the concept of community property come from?

While many are comfortable with the idea of community property, few people know its origins. Historically speaking, community property law has been traced back to Spanish Civil Law principles.

The Spanish legal code, which made its way from Spain, to South America, and ultimately to North America, brought not only the concept of community property but also the idea that martial property law “automatically springs into being” when a couple gets married (W.W. Smithers, Matrimonial Property Rights Under Modern Spanish and American Law, 70 U. P.A. L.Rev. 259, 261 (1922)).

This concept is still in effect today. Most couples in the community property states listed above know that when they say their “I dos” certain legal principles are automatically applied.

When the Spanish began colonizing Baja California and Alta California as provinces of New Spain (from approximately 1769-1821) they implanted Spanish Civil Law principles, including the concept of community property. These principles continued to be the legal basis of marriages even as Mexico gained its independence from Spain in 1821.

After California won the Mexican-American war, the question of whether to adopt a community property system was a question faced by the delegates at California’s first constitutional convention in 1849. The convention ultimately voted in favor of the civil law system of community property. (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)) .

Community property law is a constantly changing and evolving law. However, the principles reaching back to Spanish civil law remain intact. If you are looking to see how your community property has been impacted in a family law matter, please contact a knowledgeable Family Law attorney who can help you through the process.


Stacy M. Boyer, Esq.