Arizona. It’s Where We Practice, and What We Know.

We practice law in Arizona. We also live in Arizona. In fact, we have been doing both for almost a collective century.

Also, we love The Grand Canyon State — but that’s part of our image problem. The iconic notion of our state involves that stunning (well, “Grand”) Canyon and northern Arizona red rocks. But we are in Tucson, in the southern part of The Baby/Valentine/Sweetheart State, where the magnificent Saguaro is king. We particularly love the Sonoran Desert, which is reputed to be the wettest desert in the world. That means the region supports an extensive agricultural history, as demonstrated at Tucson’s own Mission Garden. You can see what people have been doing in this lovely desert for perhaps 12,000 years or so.

But we keep saying this in our newsletters, our podcasts and at every opportunity: we don’t know the law of other states. We can tell you about Arizona law, but don’t assume that the law of another jurisdiction will be the same. It actually might be, but we don’t try to inform you about those states’ laws, except when we come across an opportunity to compare and contrast Arizona law.

So how is Arizona (law) different?

Our state — the last “continental” state to join the Union (we’ve always thought that was dismissive of Alaska), the last to adopt a Medicaid plan, the last to recognize MLK Day as an official holiday — has always prized its uniqueness. But there are a number of ways in which our laws are actually different, too.

We have a strong Spanish/Mexican influence in our laws, society and culture. But so do California, New Mexico, and Texas (to name only the obvious choices). We were among the last to join the Union — but New Mexico only beat us by a month. We have a lot of heat and not much water, but that’s true of Nevada, Utah and New Mexico, too. So how are our laws different, and why can’t we generalize about other states’ laws?

Well, to be clear, most of the laws in Arizona and the rest of the states are actually pretty similar. We might reasonably guess about how Arizona law is the same as any number of other states — particularly those geographically close (like California, Nevada, and New Mexico, particularly). But we don’t want to guess. Because we don’t pay enough attention to those other states’ laws, and we’re not licensed to give legal opinions about their laws. Hence the disclaimers.

Some particular differences in Arizona law

Community property

The most notable difference between Arizona and other states’ laws is the notion of community property. Arizona is one of the minority of states that apply a Spanish/Mexican/French notion of community property. The other states, incidentally: California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. And for some purposes you might add these, for at least some purposes: Alaska, Florida, Kentucky, South Dakota, and Tennessee.

So if 14 of the 50 states are community property states, and they include both California and Texas (the two largest states by population), just how “different” is community property?

There are actually two elements to the uniqueness of Arizona’s community property law. The first is that the approach has always been followed in a minority of states, and so is often not even taught in non-community-property states’ law schools. The second is that each of those community property states has drifted in a different direction over the decades of legal development. So it’s hard to generalize too much even about the application of community property rules, even in “community property” states.

Community property rules and approaches are especially important in estate planning. They also change the administration of probate estates, the treatment of assets in Medicaid eligibility determinations and even the continuing administration of trusts. So in our practice area, particularly, community property law makes it hard to know how the rules might differ in another state.

Medicaid

As we mentioned above, Arizona was the last state to adopt the Federal/State Medicaid program to provide health care for people who could not afford care or insurance. Because we were late to the party, we pioneered a different approach. Our program, called the Arizona Health Care Cost Containment System (AHCCCS), began in 1982 as a two-year pilot. It didn’t begin to cover long-term care costs (like nursing homes, the mentally ill or developmental disabilities) until 1988, with the creation of the Arizona Long Term Care System (ALTCS).

The program has changed a lot in the 40+ years it has been around. But its origins in managed care and Arizona’s restrictive eligibility criteria have long made it an outlier among state Medicaid programs. Even when the same rules apply in other states, it seems almost accidental. That sets up another core area of our practice in which we can’t generalize much about the laws in those other states.

Probate and trust administration

Arizona was among the first to adopt a new concept — the Uniform Probate Code — clear back in 1973 (one of our lawyers, who started law school that same year, still refers to it as “the New Probate Code”). But only about a third of the states have followed suit, and we have not updated our law to match the extensive changes in 2008, 2010 and 2019. Well, actually, we’ve adopted a few of the changes — but not most of them, and not the most important ones. That means that the “uniform” law is less and less uniform over time.

Meanwhile, we were also one of the first states to adopt the Uniform Trust Code, back in 2003. But the changes were too frightening for Arizona lawyers and legislators, so it was repealed before it became effective. We took another run at the Trust Code in 2008, and modified the “uniform” law enough to make it more palatable to our maverick lawyers and lawmakers. We now have a version of the Uniform Trust Code that is notable for not being as uniform as other states’ laws.

Arizona is often quick to adopt uniform laws, actually. Sometimes we are so progressive, in fact, that we adopt new concepts even before the uniform law folks have gotten together to propose something. That means that our approach to living wills, health care powers of attorney, and electronic wills and estate planning are, well, unique. We got ahead of the curve and no one followed us on those topics.

Guardianship and conservatorship

In 1973, when we adopted our “new” Uniform Probate Code, it included provisions about guardianship and conservatorship. We dramatically changed (and updated) our law at the time. So that means it should look like other, similarly progressive, states, right?

Not so fast. Again, only a minority of states changed their guardianship and conservatorship laws by enacting the Uniform Probate Code. And many of those modified the uniform law extensively, so they wouldn’t have to use any new terms or procedures. Within a few decades, the truly progressive states were adopting the new Uniform Guardianship, Conservatorship and Other Protective Arrangements Act of 2017. But not Arizona.

In this case, we were among the first states out of the gate. But then we just sat down before the first turn, and left the rest of the field to race forward without us.

In sum: we don’t know about other states’ laws

All of that is background to our regular refrain: we only know Arizona law, and you should not take our information as necessarily applicable in other states. It might be that our description of Arizona law applies to your state, too — but if it does that’s largely coincidental. So don’t count on us in your state — even if you have community property, uniform laws and a managed care Medicaid program.