[WSBAPT] IRA/community property/probate question

[Dale Young]

Listmates, here's one to get you reaching for your old copy
of  Harry Cross' Community Property law review article. 



It's the classic stepmother vs. child from the first marriage. 

 

Client
is named as beneficiary of her recently deceased father's IRA account
(incidentally she is also named as the PR in his will and ishis sole heir in
the will to all of this property).

 

The father's surviving spouse (the client's stepmother) is also claiming the
entire IRA account.

 

The IRA was opened after his marriage to the stepmother, but the source of the
funds can be traced to reveal it was about 15% separate funds and 85% community
funds.  (by the way the funds came from an 40lk rolled over into the IRA,
which 40lk was 85%/15% community vs. separate funds)

 

The
IRA beneficiary form says if a community property state is involved then the
form naming someone other than surviving spouse as a beneficiary has to have
been signed by the surviving spouse.   The surviving spouse had
refused to sign as of the date of death. 

. 
 

RCW 26.16.030 provides in part:   

  
(1) Neither person shall devise or bequeath by will more than one-half of the
community property.

 

 (2) Neither person shall give community property without the express or
implied consent of the other.

 

 
 

My view of community property is that each spouse owns half, unless an
agreement or court says otherwise, so in a person's will they can leave
their 1/2 of community property to whomever they choose.

 

 However, an IRA is a nonprobate asset, not normally controlled by a
will (unless it is a superwill, which this is not).

 

My conclusion is that the surviving spouse gets 100% of the community
property portion of the account because the will has no effect upon the
nonprobate asset.    And, the beneficiary designation for the
IRA account to his daughter cannot control the community property portion of
the IRA account.

 

Therefore,
the answer on who gets the money is just an accounting exercise to
establish (1) what % of the invested funds were separate funds and (2) how much
the current balance is the earnings and accumulations on the separate portion
and how much on the community portion??  

 

Thus, the
lions share of the account goes to the surviving spouse and the much smaller
portion goes to the daughter? 

 

Am
I right so far??

 

Any
comments would help.

 

Thanks,


 

Dale
Young





Lowell Dale Young, LLC                From Real Estate to Your Estate
Lowell Dale Young                       Advice to Real Estate Buyers & Sellers
Attorney At Law               Wills, Trusts, Estate Planning
119 First Ave S. #200                        Probate and Avoiding Probate
Seattle, WA 
 
Mailing address: 
P.O. Box 25510
Seattle, WA 98165
Phone: 206-364-0200
Fax: 206-363-0663
Website: www.ldyounglaw.com
 
 


 		 	   		  
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