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Abstract

Part I of this article reviews the legal landscape that provided the backdrop against which Michigan, Nebraska, Oklahoma, Oregon, and Pennsylvania later adopted community property laws. It also examines the tax consequences of the two Supreme Court cases, Lucas v. Earl and Poe v. Seaborn, that resulted in the disparate tax treatment of married couples in common law and community property law states. Part II briefly reviews the subsequent passage of community property laws by Michigan, Nebraska, Oklahoma, Oregon, and Pennsylvania; the passage of a federal tax reduction bill that provided for equal treatment of community property law and common law jurisdictions; and the subsequent history of those laws in each of the five states. The immediate repeal by Michigan, Nebraska, Oklahoma, and Oregon of their community property laws following passage of the Revenue Act of 1948 suggests that the passage of the community property laws was simply a tax saving measure. This is the belief of some reputable scholars. This article does not refute that such laws were passed, in part, to achieve tax savings; however, it does suggest that other social forces were at work, as well. Part III of this article suggests that legislatures were able to pass community property laws, in part, because they gave little in the way of rights to wives, but went far, symbolically, in building married women's confidence that their household responsibilities were worth a portion of their husbands' salaries. Such confidence was necessary if the pre-war social order, with women primarily in the home rather than the workforce, was going to be successfully reinstated after the war. This Part examines the social and cultural context in which a few states passed community property laws together with the legislative debate in Pennsylvania--the only state for which a substantive legislative history is available--over the passage of its community property law. Part IV concludes that although states passed community property laws, in part, for the tax benefits, more than money was involved.