Alaska law, for title research

Is Alaska a community property state? Not by default: a signed agreement or a trust under AS 34.77

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

Why is Alaska called an opt-in state?

Because the statute makes the system a choice. IRS Publication 555 lists nine community property states and leaves Alaska off; the same publication says it does not address the federal tax treatment of income or property subject to the election under Alaska, Tennessee and South Dakota law. Chapter 34.77, the Alaska act, says that except for property classified otherwise in the chapter, property of spouses is community property only to the extent provided in a signed agreement or a trust.

Where the spouses choose it, each has a present undivided one-half interest. Property a spouse owned at the marriage but before the determination date stays outside unless the agreement expressly says otherwise, and the determination date is the latest of the marriage, the effective date of the agreement or trust, or May 23, 1998.

The scope can grow or shrink with the agreement's wording. If an agreement covers all property acquired during the marriage, section 34.77.030(b) presumes later acquisitions are community property, while subsection (g) keeps listed kinds, such as a gift or inheritance to one spouse, individual property unless the spouses provide otherwise. Under section 34.77.130(a), mixing other property with community property reclassifies it unless its component can be traced.

How do spouses choose it?

Two ways. While both spouses are domiciled in Alaska, they may sign an agreement: a written document signed by both that classifies some or all of their property, opening with the capitalized language the statute prescribes. Persons intending to marry may sign one that takes effect on marriage. Whether both, one or neither lives in Alaska, they may instead transfer property to a trust that expressly declares the property's status under the chapter, signed by both spouses, with at least one trustee who is a qualified person, such as an Alaska resident or an Alaska trust company or bank. The trust has required capitalized language too. Sections 34.77.090(g) and (h) and 34.77.100(f) list when an agreement or trust is not enforceable against a spouse.

What does an ordinary deed to Alaska spouses create?

A tenancy by the entirety, by default. AS 34.15.110(b) says a husband and wife who acquire title to real property hold the estate as tenants by the entirety, except as AS 34.77.100 provides or unless the conveyance or devise expressly declares otherwise, and the conveyance must recite the parties' marital status. AS 34.15.140(a) recognizes holding as tenants by the entirety with the right of survivorship. The community property forms below are a separate choice of words.

Who can sign a deed for it?

For property under an agreement, the default turns on how title is held. A spouse acting alone may manage and control property held in that spouse's name alone, or held in both names joined by the word or. When title names both spouses any other way, they may not manage and control it unless they act together. Under an agreement or trust, the property keeps that status regardless of the form of title, even if the deed shows only one spouse.

Those are defaults. Section 34.77.040(c) says the terms of the trust control property in a trust, and section 34.77.020 lets an agreement or trust vary the chapter apart from listed sections. Under section 34.77.040(e), the right to manage and control does not permit gifts, except as section 34.77.050 provides, and under subsection (f) the chapter does not change that right for property acquired before the determination date unless the agreement or trust expressly says so.

A bona fide purchaser who buys from a spouse with the right to manage and control the property takes it free of any claim of the other spouse, and that rule cannot be varied by an agreement or trust. Section 34.77.080(c) defines such a buyer as one who buys for value, has not knowingly been a party to fraud or illegality affecting the interest, has no notice of an adverse claim by a spouse, and acted in good faith. Notice includes reason to know from the facts known. Notice of the agreement, the trust or the marriage does not by itself change that status.

What happens to it at death?

Title held in the survivorship form, with the words survivorship community property, vests solely in the surviving spouse by nontestamentary disposition, and the first spouse to die has no right of disposition at death over it. A title in the section 34.77.110(a) or (b) form, with the words as community property but not survivorship, does not by itself establish survivorship. Spouses may also agree that on either death property passes without probate to a designated person or trust. Section 34.77.155(a) says one-half of the aggregate value of the spouses' community property and of any community property trust they established reflects the survivor's share, and subsection (b) allows distribution by a non pro rata division of that aggregate value.

The elective share is separate. AS 13.12.202 gives the surviving spouse of a decedent domiciled in Alaska a right to one-third of the augmented estate, and AS 13.12.208(d) leaves community property under AS 34.77 out of that estate.

Chapter 13.41 adds a second rule: all or the proportionate part of Alaska real property acquired with the rents, issues, income or proceeds of, or in exchange for, property that was community property under another jurisdiction's law, or traceable to it, is covered at death, with one-half belonging to the surviving spouse. Section 13.41.030 protects a purchaser for value or lender dealing with the person who has apparent title, and section 13.41.040 lets married persons sever or alter their interests.

How does an Alaska divorce divide property?

AS 25.24.160(a)(4) says the court may provide for a division of property acquired only during the marriage, whether joint or separate, in a just manner and without regard to fault, and the court may invade property acquired before the marriage when the balancing of the equities requires it.

Property under an agreement or trust has its own subsection. Under AS 25.24.160(e), unless the parties provided in the agreement or trust for another disposition, the court disposes of property identified as community property under an agreement or trust as appears just and equitable after considering all relevant factors, including those it lists.

What a title search checks on a married Alaska owner

A title check before buying traces the chain of title with images of each key deed, and reports how each vesting deed names the spouses, because the statute ties the default right to sell to whether title names one spouse, both spouses, or both joined by or. It notes title in the community or survivorship forms the statute sets out, and looks for a divorce decree or probate record in the records it reviews.

A vesting read has a limit. Spouses using an agreement or trust can set their ownership regardless of the form of title, and the sections of chapter 34.77 we read set no recording requirement for either, so one may not appear in the deed records. AS 40.17.080 governs the effect of recording generally. Who can sell is for an Alaska attorney.

The Alaska rules on spouses' property on this page, with their sources

Sources: IRS Publication 555, Community Property; Alaska Statutes AS 34.77.030; Alaska Statutes AS 34.77.900; Alaska Statutes AS 34.77.060; Alaska Statutes AS 34.77.090; Alaska Statutes AS 34.77.100; Alaska Statutes AS 34.77.040; Alaska Statutes AS 34.77.110; Alaska Statutes AS 34.77.080; Alaska Statutes AS 34.77.155; Alaska Statutes AS 13.41.015; Alaska Statutes AS 25.24.160; Alaska Statutes AS 34.15.110; Alaska Statutes AS 34.15.140; Alaska Statutes AS 34.77.020; Alaska Statutes AS 34.77.130; Alaska Statutes AS 13.12.202; Alaska Statutes AS 13.12.208; Alaska Statutes AS 40.17.080; Alaska Statutes AS 13.41.030; Alaska Statutes AS 13.41.040. Each row links the section it summarizes.

Questions people ask

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