U.S. Conflict of Laws Involving International Estates and Marital Property

Abstract

A number of states, as well as foreign jurisdictions, impose a community property regime. Under this regime, regardless of the title to property, each spouse is deemed to own a fifty percent interest in assets. When a spouse dies owning property in his own name, the tendency is to treat him as the owner of the asset in full for purposes of the power to dispose of the asset and for transfer tax purposes. However, if the property is community property, then the decedent's power to dispose of it, and the portion of the property subject to taxation, is only fifty percent. In light of the foregoing, a critical conflict of laws question must be confronted: Which jurisdiction's laws should determine whether the property is community property? In the United States, the conflict of laws issue is not too problematic because all the states essentially follow the same choice of law principle in deciding which state's law is determinative. However, when foreign jurisdictions are involved, the question of which law determines spousal property rights can become incredibly complicated. In large part, this is because foreign jurisdictions may apply very different conflict of laws principles than those adhered to in the United States when it comes to the question of marital property rights. Compounding the problem is the dearth of case law addressing the matter. A 2010 decision by the First Circuit Court of Appeals, Estate of Charania v. Shulman, does address the matter. However, it does so in an opinion that is noteworthy for its striking analytical flaws. This article delves into the opinion, which is starting to garner ill­ deserved precedential value. The Article reveals the opinion's deep flaws and proposes a far more restrained and workable approach for mediating the different conflict of laws approaches that are often at play when an international estate is at issue.