[WSBAPT] RCW 11.12.051 & Legal Separation

[Douglas Bratt]

Hello Tara:

Your interpretation is correct.  A Decree of Legal Separation does not end the marriage.

One of the reasons a number of people choose this option is to be able to "split the sheets" while stay maintaining the status of husband and wife.  This might be for religious reasons.  Another common reason is to maintain the status of married in order to allow a spouse with health issues to continue to be covered by the other spouse's group health insurance.  Certainly the ability to have that occur can make a huge difference in the quality of life for the not-well spouse, and might also have a direct effect on the amount of maintenance that the "well spouse" might otherwise have to provide.

So, while a Decree of Legal Separation might well have divided property into separate property belonging to each respective spouse, when a death occurs after a Decree of Legal Separation has been entered, a pre-existing will naming the surviving spouse as taking under the will, would still, in my opinion, be enforceable, and not affected by RCW 11.12.051 since the marriage of the parties, indeed, is not "dissolved, invalidated, or terminated."

Now, it might be that this could still lead to a result that the deceased did not necessarily intend (for instance, if that spouse simply did not have the time to change his/her will prior to an untimely death soon after entry of a Decree of Legal Separation.)

But, that situation would be no different than the couple (true case in my past practice) for whom a Decree of Legal Separation had been entered (with all property divided into his and her separate property), with one spouse dying unexpectedly, intestate, with the surviving spouse thus obtaining one-half of the deceased spouse's separate property under the Intestacy Statute, and the children of the decedent receiving the other half of the separate property of the decedent.  In that case, it was well understood that the decedent had planned to apply to have the Decree of Legal Separation converted into a Decree of Dissolution after six months had gone by, but six months had not passed prior to his death, and his surviving spouse got half of the Decedent's separate property, while retaining all of the separate property that had been awarded to the surviving spouse in the Decree of Legal Separation.

But, in both cases, that is what the statute mandates.

RCW 11.12.051 saves a forgetful divorced spouse, who fails to change his/her will after a Decree of Dissolution is entered, from having his/her estate go to a former spouse.  It does not, however, save the forgetful spouse who, for whatever reason, enters into a Decree of Legal Separation, but either fails to change his/her will naming his/her spouse as taking under the Will, or someone who never bothers to prepare a will, prior to his/her death, leaving part of all of his/her separate property in the ownership of the surviving spouse from whom he/she was legally separated.

Good luck.

Regards,

Doug Bratt

Douglas J. Bratt
Lawyer

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Office: (360) 213-2040
 Fax: (360) 213-2030



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From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Tara
Sent: Thursday, April 09, 2015 5:36 PM
To: wsbapt at lists.wsbarppt.com
Subject: [WSBAPT] RCW 11.12.051 & Legal Separation

Are the revocation provisions of RCW 11.12.051 effective for a Decree of Legal Separation?

I have a prospective client coming in whose "former" spouse has died.  They had a decree of legal separation entered and it was never converted to a dissolution.  I haven't seen the actual decree yet to confirm what exact language is included, e.g. whether "The marriage of the parties is dissolved" or "The marriage of the parties is invalid" boxes were checked.  If one of those boxes does turn out to be checked, then I think she would be treated as pre-deceased, even if the title of the pleading is decree of legal separation.

My understanding is that if the decree of legal separation provides just that "The petitioner and respondent are legally separated" then the marriage itself isn't "dissolved, invalidated, or terminated" and the provisions of a prior will, including the gifts and nomination to serve as PR, would still stand.

None of the cases on RCW 11.12.051, which are sparse, draw a distinction for the decree of legal separation.  The language of the statute seems pretty clear that the marriage must be "dissolved, invalidated, or terminated" and refer only to the decree of dissolution or declaration of invalidity.  I think I'm stumbling over whether separated falls under the umbrella of a "terminated" marriage?  I'm thinking that it does not and that this is one of the differences between the various decrees.

Am I parsing out the distinctions correctly?

Tara M. Roberts
Puget Sound Law
roberts at pugetsoundlaw.com<mailto:roberts at pugetsoundlaw.com>

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