Arizona law, for title research

Is Arizona a community property state? Yes: the statutes, and why both spouses sign for community real estate

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

What counts as community property in Arizona?

Almost everything acquired during the marriage. Section 25-211 of the Arizona Revised Statutes makes all property acquired by either spouse during the marriage community property, with two exceptions: property acquired by gift, devise or descent, and property acquired after service of a petition for dissolution, legal separation or annulment, if that petition results in a decree. Section 25-211(B) limits the second exception: service does not alter the status of preexisting community property, or change the status of community property used to acquire new property or of that new property as community property.

Section 25-213 defines the other side. A spouse's separate property is what that spouse owned before the marriage, what the spouse acquired during it by gift, devise or descent, and the increase, rents, issues and profits of that property. So a house inherited during the marriage is separate, and so is the rent it produces. A couple who married in another state and moved to Arizona is covered too: Section 25-217 says Arizona law controls marital rights in property they acquire in Arizona during the marriage.

Agreements can change the result. Section 25-203(A) lets parties to a premarital or postnuptial agreement contract on their rights in any property of either or both, and Section 25-317 lets parties enter a written separation agreement. Debts follow their own rules: Section 25-215(B) makes community property liable for a spouse's premarital separate debts incurred after September 1, 1973, only to the extent of that spouse's contribution to the community property.

Do both spouses have to sign to buy or sell Arizona real estate?

For community real property, yes, and for buying as well as selling. Section 25-214 gives spouses equal management of their community property and lets either one act alone for most purposes, but it requires the joinder of both spouses in any transaction for the acquisition, disposition or encumbrance of an interest in real property, other than an unpatented mining claim or a lease of less than one year. It also requires both spouses for any guaranty, indemnity or suretyship. Section 33-452 says a conveyance or encumbrance of community property is not valid unless executed and acknowledged by both husband and wife, except unpatented mining claims. Section 33-454 lets either spouse authorize the other by a power of attorney executed and acknowledged like a conveyance. Separate property differs: Section 33-451 lets a married person convey it without being joined by the spouse.

The homestead has its own rule. Section 33-453 says a family homestead may not be conveyed or encumbered by a spouse without the other spouse's consent, shown by each spouse signing and acknowledging the conveyance. The consent of a nonowner spouse is not required where the owner spouse holds title as sole and separate property. A title search on a married Arizona owner looks for a deed or deed of trust signed by one spouse alone, and whether one of those sections explains it.

A pending divorce adds more. Section 25-315(A) calls for a preliminary injunction against transferring, encumbering, selling or otherwise disposing of joint, common or community property, apart from stated exceptions. Section 25-214(C)(3) requires joinder to bind the community after service of a petition that results in a decree, and Section 25-213(C) addresses a mortgage or deed of trust given by a spouse who acquires land after service.

How do Arizona spouses hold title together?

Section 33-431 sets the defaults. A grant of real property to two or more people creates an estate in common unless it expressly declares a joint tenancy with right of survivorship, but the statute excepts grants to a husband and wife. For spouses it adds a third form: a grant to a husband and wife vests the estate in the surviving spouse when it is expressly declared to be community property with right of survivorship, and spouses can create that estate by transferring property they already hold to themselves, or by a transfer from either spouse to both.

The survivorship can be ended without a divorce. Under Section 33-431(D), the right of survivorship in community property with right of survivorship is extinguished as Section 14-2804 provides, or when either spouse records, in the county where the land is located, a sworn affidavit terminating right of survivorship that describes the instrument that created it and the property. Recording that affidavit does not extinguish either spouse's community interest.

Divorce ends it as well. Unless the express terms of a governing instrument, a court order or a contract relating to the marital estate provide otherwise, Section 14-2804(A)(2) says divorce or annulment severs former spouses' interests held as joint tenants with right of survivorship or as community property with right of survivorship, and transforms them into tenancies in common. Subsection (B) protects a third party who acquired for value in good faith reliance on apparent title by survivorship, unless a writing declaring the severance was recorded. Subsection (H) protects a purchaser for value without notice from having to return the property. A title search reads the vesting words on the deed and checks for the affidavit and any decree.

Is Arizona a 50/50 state in a divorce?

The statute does not use that phrase. Section 25-318 directs the court to assign each spouse's sole and separate property to that spouse, and to divide the community, joint tenancy and other property held in common equitably, though not necessarily in kind, without regard to marital misconduct, and except as Section 25-318.02 provides for a convicted spouse. Subsection (C) still lets the court consider excessive or abnormal expenditures, destruction, concealment or fraudulent disposition. For that section only, subsection (A) deems property acquired outside Arizona to be community property if it would have been community property if acquired here.

Three other parts reach title. Under subsection (D), common property for which the decree makes no provision is held from the date of the decree as tenants in common, each with an undivided one-half interest. Under subsection (E), the court may impress a lien on separate property or awarded marital property to secure listed payments. Under subsection (F), the decree must describe any real property affected by legal description. Section 33-411(A) says an instrument affecting real property gives no notice to later purchasers or encumbrance holders for value without notice unless recorded, so a report looks for a recorded decree and any deed carrying it out.

What happens to community property when an Arizona spouse dies?

Section 14-3101 says a person's separate property and share of community property pass to the people named in the will, or to the heirs if there is no will, subject to allowances, creditors' rights and administration. The surviving spouse's own share of the community property is also subject to administration until the time for presenting claims has expired, and after that only as needed to pay community claims.

Without a will, Section 14-2102 decides the decedent's half. If there are no surviving issue, or all of them are also the surviving spouse's issue, the surviving spouse takes the entire intestate estate. If any surviving issue are not the surviving spouse's, the surviving spouse takes one-half of the intestate separate property and no interest in the one-half of the community property that belonged to the decedent. What does not pass to the surviving spouse goes first to the decedent's descendants by representation, by Section 14-2103(1). A survivorship vesting under Section 33-431(C), if it was never terminated, changes that result for the property it covers.

Does property from a beneficiary deed become community property?

Not unless the deed says so. Section 33-405(B) provides that, unless the beneficiary deed provides otherwise, the interest conveyed by a beneficiary deed is the separate property of the named grantee beneficiary and is not community property. So a married beneficiary who receives a house this way holds it as separate property by default. Whether a later sale needs the other spouse's signature then starts with how the record shows title held. Section 33-451 lets a married person convey separate property without being joined, Section 25-214(A) gives each spouse sole management of separate property, and Section 33-453 says a nonowner spouse's consent is not required where an owner spouse holds title as sole and separate property.

Survivorship title limits who can sign one. A beneficiary deed executed by fewer than all owners holding with right of survivorship is valid if the last surviving owner is one who executed it, by Section 33-405(D). If not, the transfer lapses and the deed is void. Such a deed does not affect the survivorship estate, and a surviving spouse's rights prevail over the named beneficiary.

What a title search checks on a married Arizona owner

A title check before buying reads the chain of title behind each vesting: what the instruments recite about marital status when title was taken, the exact vesting words on the deed, who signed each deed and deed of trust, whether an affidavit terminating right of survivorship was recorded, and whether a divorce decree or death record is in the county records. Whether a spouse who is not on the deed holds an interest is a legal conclusion for an Arizona attorney; the report shows the record that question turns on.

A note on history: this page reads the current text of these sections. The official pages carry no session law history, so we have not tested older law. Section 25-318(G) says that section applies prospectively and retrospectively to property without regard to the date of acquisition.

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

Sources: IRS Publication 555, Community Property; Arizona Revised Statutes 25-211; Arizona Revised Statutes 25-213; Arizona Revised Statutes 25-214; Arizona Revised Statutes 25-215; Arizona Revised Statutes 25-318; Arizona Revised Statutes 25-217; Arizona Revised Statutes 33-431; Arizona Revised Statutes 33-453; Arizona Revised Statutes 14-3101; Arizona Revised Statutes 14-2102; Arizona Revised Statutes 33-405; Section 14-2804; Section 25-318; Section 25-318.02; Section 25-211; Section 25-203; Section 33-452; Section 33-451; Section 33-454; Section 33-405; Section 33-411; Section 25-215; Section 25-315; Section 14-2103. Each row links the section it summarizes.

Questions people ask

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