Married couples are a lot touchier about jointly owned property than they used to be. Many of them flat-out don't like it.
For women, separate property has become a symbol of financial independence. For men, it suggests freedom from long-term obligations if the marriage breaks up.
Ironically, just when joint property has become emotionally suspect, it is starting to make better sense under the law. I used to write columns about the ways in which joint ownership cost married couples time, money and flexibility in decision making. But many of those old constraints no longer exist.
For example, it used to be that jointly owned bank accounts or safe-deposit boxes were frozen when one spouse died; money often was tied up for quite a while.
But estate planners tell me that rarely happens any more. Banks are giving surviving spouses the access they need to joint accounts, to pay their bills and keep up the household. Each of you might want to have a modest amount of money in separate accounts, just in case difficulties arise. But frozen bank accounts are no longer good arguments for keeping property separate.
Another example: Many spouses used to face a tax on joint property when the other spouse died. That's no longer true.
In fact, nowadays the case for jointly owned assets in your marriage seems to me to be very strong, for the following five reasons:
*You get the other half of the joint property automatically when your spouse dies. There is no need to go through probate, which certainly will save your survivor some money.
*If your spouse dies owing money, creditors cannot normally put a lien against joint property that has passed to you (unless you also signed the debts).
*If you hold real estate in another state, joint ownership saves you from going through probate there.
*The marriage becomes a true economic partnership, share and share alike.
*Joint ownership protects the interests of both partners in case of divorce. In most states, marital property can now be divided equally (or unequally, as the courts decide) regardless of who holds formal title. But your out-of-court bargaining power is stronger if your name is on everything.
You might take this point as an argument for separately held property. But remember: You would have to hold 50 percent of the marital property in your own name to equal the interest you'd get from joint property.
In the nine community-property states, you get many of the advantages of joint property automatically. In fact, you'll need legal help if you decide that you want to hold some property separately rather than together.
I can think of only four situations when joint property might cause problems for married couples.
*Your spouse is vulnerable to court judgments. His creditors could file a lien against the joint property, and even though your share normally can't be seized, it's complicated to get your money out. Depending on state law, the creditor might force the sale of a jointly owned house to get at the spouse's half.
In this case, the non-vulnerable spouse would do better to hold property in his or her separate name. Even then, warns New York attorney Edward Fogel, you're courting a lawsuit if you transfer property to evade paying a judgment.
*You have a net worth above $500,000 (above $600,000 in 1987). This makes you liable for federal estate taxes, which can be avoided if each spouse holds some property separately and leaves it in trust.
A few states levy their own inheritance taxes on sums well below $500,000. When writing your will, ask your lawyer whether separate ownership would save any taxes in your own state.
*You have children from a prior marriage. If you put everything into joint names with your new spouse and then die, the spouse inherits everthing -- and he or she may may not provide for your children. To guarantee their inheritance, keep your property separate and leave it to them in your will.
If a house is your chief asset, joint ownership may be more convenient. In this case, consider providing for your children by naming them beneficiaries of your life-insurance policy, Fogel says.
*You fear that your marriage won't last. A disgruntled spouse can clean out a joint bank account, a joint safe-deposit box and, often, a joint brokerage account. Separate ownership protects your personal property.
Jointly held real estate, however, cannot be sold out from under you -- a good reason to own the family house in both names.