Updated October 8, 2026. Quick answer: This table covers 39 states and the District of Columbia so far: 3 community property states (California, Texas and New Mexico), 4 common law states where spouses can opt in with a trust (Tennessee, South Dakota, Kentucky and Florida) and 32 common law states and the District of Columbia with no opt-in read. The IRS lists nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. Every row comes from the state’s own statutes or court pages, linked on the state’s page.
Related reading on this site: IRS Publication 555.
How the 40 jurisdictions stand
Open a state’s page for the statute quotes, the federal basis rule and what the documents leave open.
| State | Regime | Basis |
|---|---|---|
| Alabama | Common law | Marital estate subject to equitable division (Ala. Code 30-2-51); elective share capped at one-third of the estate (43-8-70) |
| California | Community property | Family Code 760; equal division at divorce; one-half to the survivor at death |
| Colorado | Common law | Marital property divided in proportions the court deems just (C.R.S. 14-10-113); elective share scaled by length of marriage (C.R.S. 15-11-202, 15-11-203) |
| Connecticut | Common law | Court may assign any part of either estate (Conn. Gen. Stat. 46b-81); statutory share of a one-third life estate (45a-436) |
| Delaware | Common law | Marital property divided in proportions the court deems just (13 Del. C. 1513); elective share of one third of the elective estate (12 Del. C. 901) |
| Florida | Opt-in trust | Community Property Trust Act, Fla. Stat. 736.1501 to 736.1512 (trusts on or after July 1, 2021) |
| Hawaii | Common law | Estate divided as is just and equitable, whether community, joint, or separate (HRS 580-47); elective share of 50 percent of the marital-property portion of the augmented estate (HRS 560:2-202) |
| Illinois | Common law | Marital property divided in just proportions (750 ILCS 5/503); renunciation share 1/3 or 1/2 (755 ILCS 5/2-8) |
| Indiana | Common law | Equal division of marital property presumed just and reasonable (IC 31-15-7-5); right to take against the will, generally one-half (IC 29-1-3-1) |
| Iowa | Common law | Equitable division of all property except inherited property or gifts (Iowa Code 598.21); one-third elective share (633.238) |
| Kansas | Common law | Just and reasonable division of property (K.S.A. 23-2801, 23-2802); elective share from 3% to 50% of the augmented estate by length of marriage (59-6a202) |
| Kentucky | Opt-in trust | Community Property Trust Act, KRS 386.620 to 386.624 (effective July 15, 2020) |
| Maine | Common law | Marital property divided in proportions the court considers just (19-A M.R.S. 953); elective share of 50% of the marital-property portion of the augmented estate (18-C M.R.S. 2-202) |
| Maryland | Common law | Marital property and a monetary award (Family Law 8-201, 8-205); elective share of one-third or one-half (Estates and Trusts 3-403) |
| Massachusetts | Common law | Court may assign any part of either estate (c. 208, s. 34); one-third waiver share with issue, only $25,000 of it outright and life income on the rest (c. 191, s. 15) |
| Michigan | Common law | “Just and reasonable” division (MCL 552.19, 552.23); elective share (MCL 700.2202) |
| Minnesota | Common law | Just and equitable division of marital property (Minn. Stat. 518.58); elective share by length of marriage up to 50 percent of the augmented estate (524.2-202) |
| Missouri | Common law | Marital property divided in proportions the court deems just (RSMo 452.330); election against the will for one-half or one-third (RSMo 474.160) |
| Montana | Common law | Property equitably apportioned whether or not titled to one spouse (MCA 40-4-202); elective share of 50% of the marital-property portion of the augmented estate (MCA 72-2-232) |
| Nebraska | Common law | Division of property as may be reasonable, aimed at an equitable distribution of marital assets (Neb. Rev. Stat. 42-365); elective share of up to one-half of the augmented estate (30-2313) |
| New Hampshire | Common law | Equitable division, with an equal division presumed equitable (RSA 458:16-a); statutory share on waiving the will, one-third of the personalty and real estate when issue survive (RSA 560:10) |
| New Jersey | Common law | Equitable distribution (N.J.S.A. 2A:34-23, 23.1); one-third elective share (3B:8-1) |
| New Mexico | Community property | NMSA 40-3-8 (per the NM Courts); equal at divorce; one-half to the survivor at death |
| North Carolina | Common law | Equitable distribution (G.S. 50-20); elective share of 15 to 50 percent by length of marriage (G.S. 30-3.1) |
| North Dakota | Common law | Equitable distribution of property and debts (N.D.C.C. 14-05-24); elective share of fifty percent of the augmented estate (N.D.C.C. 30.1-05-01) |
| Ohio | Common law | Marital property equal unless inequitable (ORC 3105.171); election at death (ORC 2106.01) |
| Oklahoma | Common law | Jointly acquired property divided as just and reasonable (43 O.S. 121); election to a one-half interest in property acquired by joint industry (84 O.S. 44) |
| Oregon | Common law | Division just and proper in all the circumstances (ORS 107.105); elective share from 5% to 33% of the augmented estate by length of marriage (ORS 114.600, 114.605) |
| Pennsylvania | Common law | Equitable division at divorce (23 Pa.C.S. 3502); one-third elective share (20 Pa.C.S. 2203) |
| Rhode Island | Common law | Court may assign a portion of one spouse’s estate to the other (R.I. Gen. Laws 15-5-16.1); life estate in the decedent’s real estate in place of dower (33-25-2) |
| South Carolina | Common law | Equitable apportionment of marital property (S.C. Code 20-3-620, 20-3-630); elective share of one-third of the probate estate (62-2-201) |
| South Dakota | Opt-in trust | SDCL chapter 55-17, special spousal trusts |
| Tennessee | Opt-in trust | Community Property Trust Act, Tenn. Code Ann. 35-17-101 to 35-17-108 (2010) |
| Texas | Community property | Family Code 3.002; “just and right” division at divorce; intestate rules in Estates Code 201.003 |
| Utah | Common law | Equitable orders on property and debts (Utah Code 30-3-5); elective share of 1/3 of the augmented estate (Utah Code 75-2-202) |
| Vermont | Common law | Property equitably divided and assigned, whoever holds title (15 V.S.A. 751); elective share of one-half of the balance of the probate estate (14 V.S.A. 319) |
| Virginia | Common law | Marital and separate property, monetary award (Va. Code 20-107.3); 50 percent elective share of the marital-property portion (64.2-308.3) |
| Washington, DC | Common law | Property distributed in a manner that is equitable, just, and reasonable (D.C. Code 16-910); renunciation of the will for the intestate share, capped at one-half of the net estate (D.C. Code 19-113) |
| West Virginia | Common law | Marital property presumed divided equally, subject to alteration (W. Va. Code 48-7-103); elective share from 3% to 50% of the augmented estate by length of marriage (42-3-1) |
| Wyoming | Common law | Disposition of property as appears just and equitable (Wyo. Stat. 20-2-114); elective share of one-half or one-fourth of the property subject to disposition under the will (Wyo. Stat. 2-5-101) |
States with their own CMG page already
These states and territories have a CMG page of their own:
- Alaska: the community property agreement
- Arizona: community property stops at the petition
- Idaho: income from separate property
- Louisiana: the legal regime
- Nevada: the ways out on the face of the statute
- Washington: registered domestic partners
- Wisconsin: marital property
- Puerto Rico: sociedad de gananciales
Why the regime matters
Federal basis at the first spouse’s death depends on whether the property is community property: IRS Publication 551 says the total value of community property “generally becomes the basis of the entire property”, while a qualified joint interest between spouses has only “one-half of the value of a qualified joint interest” included. See the community property step-up page and the common law step-up page.
The same facts in each regime
Computed illustration, not tax advice: a couple paid $100,000 for shares worth $400,000 when one spouse dies.
| Regime | Survivor’s basis after the first death |
|---|---|
| Community property state | The whole $400,000 (Publication 551: the total value generally becomes the basis) |
| Common law state, qualified joint interest | The total of $200,000 plus $50,000, which is $250,000 |
| Property in a state’s opt-in trust | Open: $200,000 is the survivor’s share under the state statute; Florida (Fla. Stat. 736.1511) and South Dakota (SDCL 55-17-5) treat the trust as one established under state community property laws for 26 U.S.C. 1014(b)(6), but IRS Publication 555 does not address the federal treatment, so the federal result is not settled in the documents read |
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Related: how both halves step up in a community property state, why only half steps up in a common law state, and community property trusts and the IRS.
Each row in the state table comes from the state’s own statutes or court pages, linked at the bottom of the state’s page.
Sources
- IRS Publication 551, Basis of Assets (December 2025): https://www.irs.gov/pub/irs-pdf/p551.pdf
- IRS Publication 555, Community Property: https://www.irs.gov/pub/irs-pdf/p555.pdf
- 26 U.S.C. 1014, Basis of property acquired from a decedent (United States Code, 2024 Edition): https://www.govinfo.gov/link/uscode/26/1014?link-type=html
Sources: the primary documents linked above, read on October 8, 2026. General information, not tax advice. Your own facts decide the outcome, and a tax professional or the state agency itself is the right place to confirm anything consequential.