[WSBAPT] RCW 11.12.051 & Legal Separation

Fri Apr 10 10:42:03 PDT 2015

Doug - Thank you for the great explanation.

I appreciate knowing I was on the right track.

Tara M. Roberts

Puget Sound Law

roberts at pugetsoundlaw.com

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From: wsbapt-bounces at lists.wsbarppt.com
[mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Douglas Bratt
Sent: Thursday, April 09, 2015 6:58 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] RCW 11.12.051 & Legal Separation

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

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>
[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 <mailto: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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The information contained in this email may be privileged and confidential
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