Plural Marriage and Community Property Law

Plural marriage makes strange bedfellows. Fundamentalist Mormons, polyamorous/ polyfidelitous sex radicals, and some feminists and proponents of same-sex marriage (including this author), share the view that freedom of intimate association under the United States Constitution, properly understood, must extend beyond the right to marry exactly one person of the opposite gender from oneself. But while it is one thing to endorse marriage freedom, as a matter of principle, it is quite another actually to implement it in law. If people could simultaneously have more than one spouse, the lawyer must ask, how would things actually work, from a marital property perspective? What would happen when someone died or got divorced? A community property state that recognized plural marriage would need to adopt new rules for the division of marital property upon the death or divorce of a multiply married person, and the creation of suitable new rules requires not just minor changes of law, but the introduction of new marital property concepts. Nevertheless, these revisions are manageable and fundamentally in keeping with the community property theory of marriage. These new concepts, and model statutes that employ them, are the subject of this Article