Hawaii law, for title research

Is Hawaii a community property state? No: divorce division, tenancy by the entirety, and community property brought from another state

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

How does Hawaii classify a married couple's property?

Not as a community property state. IRS Publication 555 lists nine community property states, and Hawaii is not among them. HRS 572-21 sets a rebuttable presumption that property acquired in the name of a husband or wife is that spouse's separate property, and HRS 572-25 lets a spouse hold, manage and dispose of property as that section states. On a divorce, HRS 580-47 lets the court make orders that appear just and equitable, finally dividing and distributing the estate of the parties, real, personal or mixed, whether community, joint or separate.

The statute still uses the word community for a reason. The note to chapter 510 says the community property system was in effect in the State from 1945 to 1949 and was abolished by L 1949, c 242, and that community property from those years is governed by the chapter, with established interests not divested. For that property, Part I keeps its rules: HRS 510-2 lets a spouse convey a community interest directly to the other, HRS 510-9 has a divorce court divide it as just and equitable, and HRS 510-10 has one-half continue to belong to the survivor at a death, with the survivor and the decedent's successors holding as tenants in common and the personal representative administering the whole.

Is Hawaii a 50/50 state in a divorce?

The statute sets no fixed split. The court may make orders that appear just and equitable, on granting a divorce or afterward if jurisdiction is reserved, after taking into consideration the respective merits of the parties, their relative abilities, the condition each will be left in by the divorce, burdens imposed for the benefit of the children, any concealment of or failure to disclose income or an asset, any violation of a listed restraining order, and all other circumstances of the case. Under HRS 580-56(a), a decree that does not reserve the final division finally divides the property.

What happens to community property brought from another state?

Part II of chapter 510, the Uniform Disposition of Community Property Rights at Death Act, governs it at death. It reaches personal property, wherever situated, acquired as or that became and remained community property under another jurisdiction's laws, and what was acquired with it or traceable to it. It also reaches all or the proportionate part of Hawaii real property acquired with the rents, income or proceeds of, or in exchange for, that property, or traceable to it. Land outside Hawaii is not in the act. Two rebuttable presumptions apply. Property acquired during marriage while domiciled in a community property jurisdiction is presumed covered; property acquired while domiciled elsewhere and titled with survivorship rights is presumed not covered.

At the first death, one-half of covered property belongs to the surviving spouse and is outside the decedent's will and intestacy. The other half is the decedent's, and it is not subject to the survivor's elective share. Married persons may sever or alter these interests.

How is title fixed after that death?

If the decedent held title, the surviving spouse's title may be perfected by a circuit court order or by an instrument from the personal representative, heirs or devisees approved by the circuit court. If the surviving spouse holds title, HRS 510-25 lets the personal representative, an heir or a devisee sue to perfect it. A purchaser for value or secured lender dealing with whoever has apparent title takes free of the other side's rights and need not inquire whether the seller acted properly. HRS 510-27 says the part does not affect rights of creditors.

How do Hawaii spouses hold title together?

The default is an estate in common: HRS 509-1 construes a grant to two or more persons that way unless it manifestly appears from the instrument that another form was intended. Tenancy by the entirety is one form open to spouses. HRS 509-2 lets a person convey to oneself and a spouse or reciprocal beneficiary, or spouses convey to themselves, as tenants by the entirety without going through a third party, when the instrument manifestly indicates that intention. Entirety land conveyed to the spouses' revocable joint trust, or in equal shares to their separate revocable trusts, keeps the same immunity from separate creditors only while subsection (c) is met: the spouses stay married, the land stays in the trust, both remain beneficiaries with no waiver, the trust name includes their names, and a recorded deed gives notice referring to the section. Under subsection (f), a divorce or annulment ends the immunity and the land is treated as held in common. Subsection (g) allows a waiver, and subsection (h) puts the burden of proving immunity on the spouses.

What does a surviving spouse take at death?

Without a will, HRS 560:2-102 gives the spouse the entire intestate estate when no descendant or parent survives, or when all descendants are shared and the spouse has no others. Otherwise the spouse takes the first 400,000, 330,000 or 220,000 dollars, depending on who survives, plus three-fourths or one-half of the balance. With or without a will, the surviving spouse of a decedent domiciled in Hawaii may elect fifty per cent of the marital-property portion of the augmented estate, under the limits in that part, with a supplemental amount when listed sums fall below 90,000 dollars. HRS 560:2-211 sets the petition deadline, nine months after the death or six months after probate of the will, whichever expires later. HRS 560:2-112 abolishes dower and curtesy.

What a title search checks on a married Hawaii owner

A title check before buying traces how each owner took title, with images, reports any deed creating a tenancy by the entirety or moving land into trust, and any decree, circuit court order or approved instrument it finds. The record alone may not show that land was acquired with community property from elsewhere. That question, and whether a spouse must join a particular deed, is for a Hawaii attorney.

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

Sources: IRS Publication 555, Community Property; Hawaii Revised Statutes 580-47; Hawaii Revised Statutes 509-2; Hawaii Revised Statutes 510-2; Hawaii Revised Statutes 510-21; Hawaii Revised Statutes 510-22; Hawaii Revised Statutes 510-23; Hawaii Revised Statutes 510-24; Hawaii Revised Statutes 510-26; Hawaii Revised Statutes 510-28; Hawaii Revised Statutes 560:2-102; Hawaii Revised Statutes 560:2-202; Hawaii Revised Statutes ch. 510, note; Hawaii Revised Statutes 510-9; Hawaii Revised Statutes 510-10; Hawaii Revised Statutes 509-1; Hawaii Revised Statutes 572-21; Hawaii Revised Statutes 572-25; Hawaii Revised Statutes 509-2(c); Hawaii Revised Statutes 509-2(f); Hawaii Revised Statutes 510-25; Hawaii Revised Statutes 510-27; Hawaii Revised Statutes 560:2-202(b); Hawaii Revised Statutes 560:2-211; Hawaii Revised Statutes 560:2-112; Hawaii Revised Statutes 580-56(a). Each row links the section it summarizes.

Questions people ask

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