Marital property discrimination: Reform for legally excluded women

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In American legal history, there are numerous examples of law-sanctioned discrimination against women (i.e., the right to vote, to enter all occupations, to serve on juries, to hold public office, to contract, and to conduct business). Exclusions were typically based upon a rationale of special “protections” needed for women, particularly because of their homemaking and child-bearing functions, and references to the “law of nature.” Although many of these legal barriers have been removed, the common law property system for determining the rights of married couples has only recently been identified as the last, major legal area of discrimination based upon gender. In 1984, Wisconsin became the first common law state to enact comprehensive marital property reform. It adopted legislation based upon the key community property principle of automatic property sharing by husband and wife. Similar legislation based upon the Uniform Marital Property Act is now being considered by a number of other common law property states. Some reasons for the success of Wisconsin's marital property reform movement in reversing prior rules of discrimination and exclusion are noted, particularly the existence of politically organized women voters and bipartisan legislative leadership by respected male and female legislators. This case study illustrates how prior substantive legal reforms eliminating discrimination based upon gender have in turn resulted in additional, comprehensive legal reforms designed to bring women into the mainstream of economic power and legal rights.