Alabama law, for title research

Is Alabama a community property state? No: equitable division, homestead signatures and survivorship words

Every rule below is quoted from the Code of Alabama or another official source, linked and checked on the date shown. General information, not legal advice.

How does Alabama divide property in a divorce?

Section 30-2-51 says the marital estate is subject to equitable division and distribution. If a spouse has no separate estate, or it is insufficient for the maintenance of a spouse, the judge may at his or her discretion order an allowance out of the other spouse's estate, considering its value and the condition of the spouse's family.

In setting that allowance, the judge may not consider property acquired before the marriage or by inheritance or gift, unless the evidence shows the property, or its income, was used regularly for the parties' common benefit during the marriage. Section 30-2-52 covers an allowance on a divorce for misconduct: the misconduct may be considered in the amount, and premarital, inherited or gifted property may not, with no such exception stated.

The section describes what the marital estate includes only for retirement benefits. Unless the parties agree otherwise, section 30-2-51(b)(2) says retirement benefits payable to the noncovered spouse shall not exceed 50 percent of those the court may consider, and subsection (c) says nothing in the section requires a court to divide any amount or percentage of them.

Is a married woman's property separate in Alabama?

Section 30-4-1 says all property of the wife, held before the marriage or to which she becomes entitled afterward in any manner, is her separate property and is not subject to the husband's liabilities. Section 30-4-5 covers property acquired by descent, inheritance, gift, devise, bequest, contract or conveyance, including by gift from or contract with the husband, except property conveyed to an active trustee for her benefit. A husband and wife may contract with each other, under the rules for persons in confidential relations.

Does a spouse have to sign an Alabama deed?

For the homestead, yes, and the Code also carries a rule on a wife's lands. Section 6-10-3 says no mortgage, deed or other conveyance of the homestead by a married person is valid without the voluntary signature and assent of the husband or wife. That assent must be shown by examination before an officer authorized to take acknowledgments, and by the officer's certificate on or attached to the instrument, substantially in the individual form in section 35-4-29.

That form certifies that the signer, being informed of the contents of the conveyance, executed it voluntarily on the day it bears date.

The homestead has a defined size and value. Section 6-10-2 exempts from levy and sale the homestead of a resident that does not exceed 160 acres and is valued at no more than 15,000 dollars, or 56,400 dollars if the resident is 62 or older or an individual with a disability, and a mobile home used as a principal residence counts. If an over-limit homestead was conveyed without the spouse's voluntary signature and legal acknowledgment, section 6-10-40 lets the transferor, the spouse or their minor children file a complaint to have the land sold and the homestead interest separated from the transferee's. Section 6-10-4 keeps the article from preventing a laborer's, merchant's, materialman's or vendor's lien, or affecting a deed, mortgage or lien lawfully executed or created.

Section 30-4-12 is the other rule. It says a wife cannot alienate or mortgage her lands or any interest in them without the assent and concurrence of her husband, shown by his joining in the conveyance. The exceptions are a husband who is non compos mentis, has abandoned her, is a nonresident, or is imprisoned on a conviction for two years or more. She may lease without his assent. The section appears in the current Code; how a court would apply it today is for an Alabama attorney.

Recording protects a later buyer. Section 35-4-90 makes conveyances, deeds and mortgages inoperative and void as to purchasers for value, mortgagees and the other parties it names without notice, unless recorded before their rights accrue.

How is survivorship created in Alabama?

By the words of the instrument. Under section 35-4-7, when a joint tenant dies before severance, the interest does not survive to the other joint tenants; it descends and vests as if it had been severed. The exception is an instrument stating the tenancy is with right of survivorship, or using other words showing that intention. The rule includes a deed in which the grantor conveys to himself and others, when the intent to create survivorship clearly appears.

Divorce changes it. Section 30-4-17(b)(2) says a divorce or annulment severs joint tenancies with right of survivorship between the former spouses, turning them into equal tenancies in common, unless an instrument, court order or property division contract expressly provides otherwise. Subsection (c) protects a third party who acquires an interest for value and in good faith reliance on an apparent title by survivorship, unless a writing declaring the severance has been noted, registered, filed or recorded in the appropriate records. Section 43-8-252 says a divorced person is not a surviving spouse unless remarried to the decedent at death, and lists further cases, and section 43-8-137 revokes dispositions to a former spouse in a will executed before the divorce unless the will expressly provides otherwise.

What does a surviving Alabama spouse take?

Dower and curtesy are abolished by section 43-8-57. Without a will, section 43-8-41 gives the spouse the entire estate when no issue or parent survives, the first 100,000 dollars plus half with a parent and no issue, the first 50,000 dollars plus half when all issue are also the spouse's, and half when an issue is not the spouse's. If the estate lies in two or more states, the share may not exceed in the aggregate the amounts allowed.

The surviving spouse of a person domiciled in Alabama may elect the lesser of one-third of the estate, or all of the estate reduced by the spouse's separate estate. Section 43-8-70(b) defines that separate estate to include property the spouse owns outright after the death, interests acquired only by surviving the decedent, and income and other beneficial interests under a trust, life insurance on the decedent or an employer plan. Section 43-8-72 lets the right be waived before or after marriage by a signed writing after fair disclosure, and a waiver of all rights or a complete property settlement in anticipation of separation or divorce also waives it, unless it provides otherwise. The petition is due within six months after death or six months after probate of the will, whichever expires last. The surviving spouse of a decedent domiciled in Alabama also has a homestead allowance of 15,000 dollars, ahead of all claims against the estate, and the value of any constitutional right of homestead in the family home is charged against it to the extent the section states. Section 43-8-111 adds exempt property up to 7,500 dollars, section 43-8-112 a reasonable family allowance during administration, and section 43-8-114 lets the spouse retain possession of the dwelling, free of rent, until homestead is assigned. Those dollar figures are the amounts printed in the code. Sections 6-10-12 and 43-8-116 direct the State Treasurer to adjust each dollar amount in their articles every 3 years for the Consumer Price Index and to publish the adjusted amounts, which apply to exemptions claimed on or after the April 1 following the adjustment date.

What a title search checks on a married Alabama owner

A title check before buying reads the chain of title: the vesting words on each key deed, with images, who signed each deed and mortgage it finds, and any court or probate record it finds. Whether a spouse's signature was required, and what a record does to title, are questions for an Alabama attorney.

The Alabama marital property rules on this page, with their sources

Sources: IRS Publication 555, Community Property; Ala. Code s. 30-2-51; Ala. Code s. 30-4-1; Ala. Code s. 30-4-5; Ala. Code s. 30-4-9; Ala. Code s. 6-10-3; Ala. Code s. 35-4-29; Ala. Code s. 35-4-7; Ala. Code s. 43-8-57; Ala. Code s. 43-8-41; Ala. Code s. 43-8-70; Ala. Code s. 43-8-73; Ala. Code s. 43-8-110; Ala. Code s. 30-4-12; Ala. Code s. 6-10-2; Ala. Code s. 6-10-40; Ala. Code s. 6-10-4; Ala. Code s. 35-4-90; Ala. Code s. 30-4-17; Ala. Code s. 43-8-252; Ala. Code s. 43-8-137; Ala. Code s. 43-8-72; Ala. Code s. 43-8-111; Code of Alabama 43-8-116; Ala. Code s. 43-8-112; Ala. Code s. 43-8-114; Ala. Code s. 30-2-52. Each row links the section it summarizes.

Questions people ask

More on how Alabama property law shapes a title search: title research in Alabama.