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Most community property states define community property in their constitutions. This means the definition can be easily expanded but not narrowed. Transmutations of community property are not restricted by constitutional issues. The spouses may contract between themselves to transmute property to different classifications. Generally, legislative enactments that change community property laws apply to preenactment acquisitions if the application of the new law does not take any property rights away from the husband or wife. Retroactive applications of a change in law are generally allowed if the preenactment law that was changed was causing a rank injustice. An order taking property from one spouse and awarding it to another at divorce is not a violation of due process. Such judicial acts are deemed to be a strong state interest in a fair property division between spouses at divorce. This interest permits a court to award one spouse's property to another at divorce.
However, unlike at divorce there is no strong state police interest if one of the spouses is dead. State community property law may be preempted by federal law. The federal statute must be enacted under some source of federal power. The state law will be applied unless ...
