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WA-Probate > Probate Instructions > Is a Probate Necessary? > Determining Decedent's Surviving Spouse's Marital Interest

 

Washington Probate Instructions

 

 

Determining Decedent's Surviving Spouse's Marital Interest

  1. What Is Community or Quasi-community Property?

  2. What Is the Effect of Determining an Asset to be Community or Quasi-community Property?

  3. An Asset's Character May Not Be What It Says on Its Title

  4. Commingling of Assets

  5. Handling the Surviving Spouse's One-Half Interest in Decedent's Probate

 

A.   What Is Community or Quasi-community Property?    

 

Washington, like California and seven other states, is a community property state.  Consequently, if Decedent was married at death, it is likely that some and perhaps all of Decedent's property is either:

Example:  John and Martha are married to each other and live in New York, a separate property state.  John celebrates the announcement of his promotion and job transfer to Washington by using a portion of his earnings to buy a new family car.  John and Martha move to Washington, become enraptured by its native beauty, and soon use a substantial portion of their marital savings as a down payment on a new home close to John's new work.  In reverse order:

 

B.   What Is the Effect of Determining an Asset to be Community or Quasi-community Property?    

 

All of the property of a Decedent married at death will need to be characterized as either community, quasi-community, separate, or some combination among them.  Why?

Consequently, the issue of characterization of each of Decedent's assets can potentially become one of, in the words of the notorious bank robber Willie Sutton, "Where the money is" --- especially in the eyes of an intestate Decedent's surviving spouse and any children of Decendent's prior marriage.

 

 

C.   An Asset's Character May Not Be What It Says on Its Title    

 

There is more to this characterization than meets the eye, specifically, how any asset is expressly titled.  Under Washington law, ALL property acquired by either spouse or both spouses during their marriage and while residing in Washington is presumed to be community property --- regardless of how the property may be titled.  Therefore, unless it can be shown that the property was truly separate property, it will presumed to be, and treated for probate purposes as, community property.  Citations: A long line of cases, extending from Yesler v. Hochstettler, 4 Wash. 349 (1892) through Marriage of Chumbley, 150 Wn.2d 1 (2003) [Use of spouse's separate property to exercise Immunex stock options received during employment while married].

 

Under Washington law, separate property is property that is either:

  1. Acquired before, brought to, AND maintained separately during the marriage; or
     

  2. Acquired during the marriage by gift or inheritance, intended by its donor to be the separate property of one spouse, AND maintained separately during the marriage after its acquisition; or
     

  3. Converted to separate property by a valid agreement between the spouses (eg, by a Property Status Agreement or Postnuptial Agreement) AND maintained separately during the marriage after its conversion.

RCW 26.16.010, 26.16.020, and 26.16.120

 

To rebut the presumption that all property acquired during a marriage is community property, clear and convincing evidence must be shown that the asset in question fits into one of the three separate property categories shown above.  Dean v. Lehman, 143 Wn.2d 12 (2001) [Wife of Department of Corrections inmate challenged validity of Washington statute mandating deduction of 35% of all funds received by prison inmates].

 

Practically speaking, this means that in order to determine that any asset in the estate of a Decedent survived by a spouse is truly Decedent's separate property, you will need to obtain such information as:

 

D.  Separate Property Can Lose Its Separate Character in Time: Commingling of Assets    

 

To complicate matters further, separate property can lose its separate character over time and become community property through a process known as "commingling."  Separate property remains separate property though changes and transitions (eg, sale of separate property and subsequent use of the sales proceeds to purchase other separate property) so long as its separate character remains traceable and identifiable.  If, however, the ability to distinguish or apportion it from community property is lost, the entire amount of what began as a separate asset becomes community property.  Marriage of Pearson-Maines, 70 Wn. App. 860 (1993).  The burden is on the party claiming separate property to clearly and convincingly trace the purported separate asset to a separate property source.  Marriage of Skarbek, 100 Wn. App. 444 (2000).  This process is known as "tracing," and it in particular and this characterization in general can easily become contentious, especially in either of the following cases involving a surviving spouse and Decedent's children of a prior marriage:

If you have any questions at all about this characterization or tracing, WASHINGTON PROBATE urges you to obtain legal counsel.

 

 

E.   Handling the Surviving Spouse's One-Half Interest in Decedent's Probate    

 

One practical problem arising at the death of a married spouse is how to handle the surviving spouse's one-half community interest as regards Decedent's probate estate, namely, whether the Decedent's probate estate should include:

Washington handles this problem by providing that for community property that is not the subject of a Community Property Agreement between the spouses:

As for community property that is the subject of a Community Property Agreement between the spouses, such property:

 

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