Activists campaign to reform marital property laws

When an elderly farmer in eastern Kansas died two years ago after 50 years of marriage, his widow was shocked to learn the terms of his will: She would receive the house, but all other assets would go to charity. ``The house was mortgaged, and she didn't even have enough money to make the payments,'' explains Viola Dodge, president of Kansas Agri-Women in Olsburg, Kan. Although the widow contested the will and eventually received a better settlement, legal fees further eroded her share of the estate.

Her experience illustrates the economic vulnerability of women in states where property laws allow unequal control of marital property. Only nine states have community property laws, which divide marital property 50-50.

``In most states a married woman has no right to knowledge of, control over, or access to the family assets during the marriage,'' says Eleanor Smeal, president of the National Organization for Women (NOW). Marital property laws in the United States, she adds, generally do not recognize that marriage is a partnership, with each spouse making a different but equally important contribution.

To strengthen that economic partnership, NOW is launching a nationwide campaign to guarantee the rights of married women. A 25-member task force is urging development of a national policy to protect the property rights of each spouse during marriage, at the death of a spouse, and at divorce.

The group advocates equal protection of the law for the marital property rights of each spouse. It calls for equal ownership of property and assets acquired during marriage, including pensions, retirement benefits, and other career assets. It also seeks to require couples to disclose information to each other about assets and liabilities, and to act together in buying, selling, or mortgaging real estate.

These changes are necessary, Ms. Smeal argues, because current laws ``encourage deception. We are contributing to a climate that enables a man to tell his wife what he chooses. Why should we have a system of laws that allow somebody to cheat others?

`` We say to people, `Don't leave the keys in the car and the motor running - it's a temptation for someone to take it.' But aren't we tempting people to cheat someone, and is this not also contributing to the breakdown of the family?''

Under current law, says Eleanor Revelle, vice-president for advocacy of the Illinois League of Women Voters, ``It's very easy for a title-holding spouse to leave all the property to a third party by means of joint tenancy, a trust, or a life insurance policy. If you use non-probate means of transferring property, the property does not pass through the estate and goes directly to the surviving joint tenant or the beneficiary of the trust or the life insurance policy.

``Most people will say it's against the law to disinherit a spouse,'' she continues. ``That's true if the person has left all their property by will to a third person, because then the surviving spouse can renounce the will. If that happens then the surviving spouse gets between one-third and one-half of the property in the will. But what people don't realize is that there are these other non-probate means of transferring property.''

Under the Uniform Marital Property Act (UMPA), designed to serve as a model for nationwide standardization, at the death of a spouse the surviving partner would automatically own half the marital property. This includes property the deceased spouse holds jointly with another person. A spouse would have the right to will up to half the marital property to someone else. A husband and wife can retain as separate property anything they brought to the marriage, and any inheritances. They can also draw up agreements to set up different ownership arrangements.

Revised marital property laws could also help in divorce settlements. According to Lenore Weitzman, a task force member and author of ``The Divorce Revolution,'' women's standard of living decreases by an average of 73 percent after divorce, while men's increases by 42 percent, in part because of inequitable laws governing marital property, ownership, and distribution. Under UMPA, both parties would come to court with an equal legal claim to assets, although the law would not guarantee an equal distribution.

In addition to state legislative reforms, Smeal believes that federal initiatives - among them passage of the Equal Rights Amendment and adoption of the NOW Homemakers' Bill of Rights as public policy - would help to promote women's economic equality.

She also proposes adding a sentence, called the ``Bonnie law,'' to federal income tax forms. It states that anything on the statement that is jointly reported is assumed to be jointly owned.

Smeal explains: ``When you sign a joint income tax return, you're equally liable for any misstatement, even if you've never had access to the books. If you're responsible for anything that goes wrong, there should be a presumption that it's equally yours if there's something right. This is such a simple way for millions of women to establish that they have a right to whatever happened during that year.''

The task force is also calling for educational measures, such as state laws requiring that applicants for marriage licenses be given a pamphlet explaining the legal rights of both partners.

``If women and men know their rights, they will work for change,'' says Smeal.

Not everyone wants that change. ``There's a lot of residual opposition out there,'' says William Cantwell, a Denver attorney who was instrumental in drafting the Uniform Marital Property Act in 1983. ``It's very unusual to find any strong group of male lawyers who come quickly and naturally to the beauty of this idea,'' he adds wryly.

Yet acceptance is growing, task force members report.

``Young people are much more amenable to this than older people,'' says Dorothy Jonas, chairman of the task force.

Although recent reforms in Wisconsin, Louisiana, and California represent progress, property law experts emphasize the importance of a national approach. The distribution of marital property ``shouldn't depend on which state you live in,'' says Kim Gandy, an attorney in New Orleans. ``It should be based on equity.'' And a state-by-state approach is ``too slow and too spotty,'' Smeal adds.

Pointing out that love is ``not just words, it's deeds,'' she sums up: ``If from the beginning of a marriage you know that when you acquire things, you must by law share that information with your spouse, it would create an atmosphere of mutual trust and understanding much more than we have now. Marital property laws should help create a climate of loving and understanding. You trust if there is openness and nothing to hide.''