[WSBAPT] Omitted Spouse and Living Trust

[Sam Furgason]

There are arguments which can be made that the widow has an interest in at
least some of the trust corpus. For example, did H comingle community
property with his separate property by placing his earnings or other
community funds into a trust owned bank account? If so, W2 could argue that
the entire account was a community asset, owned ½ by her. 

Another argument is that the trust was a will substitute, and therefore she
is an omitted spouse as to all property held in the survivor’s trust.
Washington law is increasingly treating living trusts as comparable to
wills, and some trust instruments specify that Washington’s laws regarding
wills be used in interpreting the provisions of the agreement. 

(If the trust instrument divided the original trust upon W1’s death – as is
commonly provided – then W2 would have no claim on W1’s sub-trust, but H’s
share might be treated as a will substitute and W2 treated as an omitted
spouse.)

Remember, probate courts sit in equity, not at law, so equitable remedies
should be available on what might appear at first to be a contract law
issue. (After the U.S. S. Ct. decided that state laws regarding revocation
on divorce did not apply to ERISA, permitting plans to distribute to
divorced spouses still named as beneficiaries, attorneys were able to mount
successful collateral attacks by getting state courts to enter judgments
against the named-divorced beneficiaries on the principle of unjust
enrichment.) 

A position posited on the basis of some equitable remedy might serve as a
negotiating point for W2. 

S  

 

From: wsbapt-bounces at lists.wsbarppt.com
[mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Tom J. Westbrook
Sent: Wednesday, May 06, 2015 7:46 AM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] Omitted Spouse and Living Trust

 

The Trust document controls the distribution of the Trust assets. Upon H’s
death it became irrevocable. Look closely to see what it says about
distribution of assets upon death of last Trustor to die. That is your
answer. If H’s assets go to specific beneficiaries that are not W, then she
takes nothing. If H’s assets go to his heirs by representation, then you
might have something in your favor. W is not an omitted spouse of the Trust
– she was not a party to the Trust and not a spouse at the time it was
created. That’s my 2 cents anyway



..

 

Sincerely,

 

Tom

 

Thomas J. Westbrook

Attorney at Law

 



 

Rodgers, Kee & Card

324 West Bay Drive NW, Suite 201

Olympia, Washington  98502

 

Phone: 360-352-8311

Facsimile: 360-352-8501

Email: tjw at buddbaylaw.com <mailto:tjw at buddbaylaw.com> 

Skype: thomas.westbrook

www.buddbaylaw.com <http://www.buddbaylaw.com> 

 

The information contained in this email and attachment(s) are for the
exclusive use of the addressee(s) and may contain private, privileged and/or
confidential information.  If you are not the addressee, you are strictly
prohibited from reading, photocopying, distributing or otherwise using this
email or its contents in any way. If you have received this communication in
error, please notify us immediately by telephone at 360-352-8311 or by
e-mail to reception at buddbaylaw.com <mailto:reception at buddbaylaw.com> , and
destroy the original message from your electronic files.

 

From: wsbapt-bounces at lists.wsbarppt.com
<mailto:wsbapt-bounces at lists.wsbarppt.com>
[mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Mike Jacobs
Sent: Tuesday, May 05, 2015 7:17 PM
To: wsbapt at lists.wsbarppt.com <mailto:wsbapt at lists.wsbarppt.com> 
Subject: [WSBAPT] Omitted Spouse and Living Trust

 

Listmates, 

 

H&W enter into Revocable Living Trust and Pour Over Will.  W dies and H
eventually remarries.  He does not change his estate plan.  H dies and new W
is an Omitted Spouse.  Does the Omitted Spouse statute allow an omitted
spouse to claim an interest in the trust assets?  

 

Sincerely,

 

Michael P. Jacobs

 

Riach Gese Law Firm

T: 425-776-3191

F: 425-775-0406

 

http://www.riachgese.com <http://www.riachgese.com/> 

 

RIACH GESE LAW FIRM

7331 196th St SW

P.O. Box 1067

Lynnwood, WA 98046

REPRESENTING OUR COMMUNITY SINCE 1959

 

 

Confidentiality Notice: This e-mail message may contain confidential or
privileged information. If you have received this message by mistake, please
do not review, disclose, copy, or distribute the e-mail. Instead, please
notify us immediately by replying to this message or telephoning us and
delete the message. Thank you. 

 

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/wsbapt/attachments/20150506/0b18bffc/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.jpg
Type: image/jpeg
Size: 3629 bytes
Desc: not available
URL: <http://mailman.fsr.com/pipermail/wsbapt/attachments/20150506/0b18bffc/image001.jpg>