- If No Surviving Spouse
- Separate vs. Community Property
- Quasi-Community Property
- If a Surviving Spouse
- Surviving Spouse vs. Children of a Prior Marriage
- Missing Heirs
If No Surviving Spouse
The easier case: If no surviving spouse:
- To Decedent’s surviving children and lower issue (ie, grandchildren, great-grandchildren, etc.) “By Right of Representation” (also known as “per stirpes,” as the relevant portion of a genealogical diagram looks like a stirrup):
- In other words, equally among Decedent’s children, and with the children of any predeceased child of Decedent (ie, Decedent’s grand-children) taking equally in the place of that predeceased child, etc.
- Only if no surviving child or lower issue:
- All to Decedent’s surviving parent or to Decedent’s surviving parents equally (ie, up one generation).
- Only if no surviving parent:
- To the surviving children and lower issue of Decedent’s parents by right of representation (ie, brothers, sisters, nephews, nieces, etc.).
- Only if no such surviving children or lower issue:
- All to Decedent’s surviving grandparent or to Decedent’s surviving grandparents such that if both maternal and paternal grandparents survive Decedent, then each side takes equally (ie, up two generations).
- Only if no such surviving grandparent:
- To the surviving children and lower issue of Decedent’s grandparents (ie, aunts, uncles, cousins, etc.), with the amounts as described in RCW 11.04.015(2)(e).
- And only if no heirs as above, ie, no surviving:
- Children & lower issue,
- Parents & lower issue, and
- Grandparents & lower issue:
To the State of Washington (the property “escheats” to the state). RCW
11.08.140 but see also RCW 11.04.095 for a savings clause in favor of step-children.
Separate vs. Community Property
Before tackling the harder case, with a surviving spouse, we need to differentiate between separate and community property and raise the issue of quasi-community property:
- Separate property is property owned before marriage or acquired after marriage by gift (either during the donor’s life or at the donor’s death, ie, by bequest (personal property by Will), devise (real property by Will), or descent (by inheritance, without a Will)), together with their rents, issues, and profits (eg, interest, dividends, rents, appreciation, sale proceeds, etc.) RCW 26.16.010 (Husband) and 26.16.020 (Wife)
- Community property is property not owned or acquired as above but acquired after marriage — by either or both of the husband and wife. RCW 26.16.030 And the statute expressly provides that neither spouse has the right to give during life community property without the consent of the other or to give at death more than one-half of the community property. Furthermore, all property acquired during a marriage is presumed to be community property, unless evidence shows it to be separate property. Marriage of Short, 125 Wn.2d 865 (1995).
At first blush, quasi-community property is property acquired by a Decedent while residing outside of Washington that would have been community property of the Decedent and his/her surviving spouse if the Decedent had been residing in Washington when the property was acquired. RCW 26.16.220 Consequently, quasi-community property is usually not an issue for a Decedent who, during the marriage, has been either a lifetime resident of Washington or a resident of any of the other eight community property states (eg, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, or Wisconsin).
Quasi-community property, however, does become an issue for a Decedent who acquired property during the marriage while living in any of the other, separate property states, where property acquired during marriage is generally considered to be owned all by the husband. One can understand why a wife might want this “all owned by the husband” consideration to be revisited upon her husband’s death, especially if the husband attempts to dispose by Will of more than half of the property acquired during their marriage.
Washington, quasi-community property is treated at death like community property. RCW 26.16.230 If the possibility of quasi-community exists in your matter, WASHINGTON PROBATE recommends that you seek legal counsel. Now, let us return to the issues of:
- Who are Decedent’s heirs if Decedent is survived by a spouse, and
- To what are they entitled?
If a Surviving Spouse
As to Community Property, the surviving spouse:
- Keeps all of his/her own one-half interest, and
- Inherits all of Decedent’s one-half interest in their community property.
In other words, upon Decedent’s death, the surviving spouse becomes the owner of all their community property (and generally their quasi-community property, as well).
As to Separate Property, things get more complicated. The surviving spouse inherits:
- Decedent is survived by any children or lower issue, with those children and lower issue taking the remaining one-half by right of representation. Or, if Decedent is not survived by any children or lower issue:
- Three-quarters — if Decedent is survived by one or more parents or one or more issue of parents, with those parents or issue taking the remaining one-quarter equally if in the same degree of kinship and, if not, then by right of representation. Or, if Decedent is not survived by one or more parents or one or more issue of parents:
- All of Decedent’s separate property.
Surviving Spouse vs. Children of a Prior Marriage
Many probate disputes involve the following circumstances:
- During his/her life, Decedent married, had children, then divorced;
- During the marriage, Decedent acquired property, some of which was kept following divorce;
- Decedent remarries and brings some property to the remarriage;
- During the remarriage, Decedent acquires further property; and
- Decedent dies without a Will.
The situation is complicated further by any of the following circumstances:
- Decedent’s second spouse has children of a prior marriage;
- Decedent has children of the remarriage; or
- During the remarriage, Decedent and his/her spouse resided and acquired property in another state and then moved to Washington, especially if the prior state was not a “community property” state.
These circumstances generate a classic probate dispute between Decedent’s surviving spouse and Decedent’s children of a prior marriage. The spouse wants the property characterized as community property, so it will all pass to him/her. The children want the property characterized as separate property, so at least a share of it will pass to them. Typically, this results in an expensive legal and accounting nightmare called “tracing,” to determine for each property in the estate its separate or community character:
- Who acquired it?
- When was it acquired?
- How was it acquired?
- What funds were used to acquire it?
- it was titled:
- How was title held (eg, by whom? and with any designation, such as in joint tenancy or as separate or community property?)?
- Was the way titled was held truly reflective of the parties’ intent (eg, if it was in joint tenancy form, was this simply for convenience?)?
- Were there any outside agreements as to who really owned the property or how it would pass upon Decedent’s death (eg, was the property subject to a Community Property Agreement?)?
If any of these circumstances are present in your matter, WASHINGTON PROBATE urges you to seek legal counsel. Lastly, if any of these circumstances are present in your own personal WASHINGTON PROBATE urges you to make a Will, one that clearly and unambiguously specifies who gets what and does so for all possible conditions and outcomes.
How do you notify a missing heir that a probate has begun and that a Personal Representative has been appointed?