[WSBAPT] Family Support versus additional exempt assets; counting of community property?

[Paul Grant]

Eric,

My reading of the statute for the issues you presented:  #1 - I agree with
your interpretation that the $125 is only talking about a decedent's
portion of c/p or separate property.  If the surviving spouse has $500k in
separate property it is not the decedent's, so the exemption applies to
only the decedent's estate, and for that matter, only the probateable
estate.  Also, half of the c/p is considered the surviving spouse's and
should not be reflected in the $125 calculation; I have calculated the
entire c/p value then halved the amount and have been successful in courts
accepting this interpretation in awarding the exemption.  A consideration
under 11.54.050 is for a creditor to claim that there are nonprobate assets
sufficient to the survivor and therefore a reduction should be applied to
the presumption.

Question #2 in my opinion is simply telling us what the exemption amount
is... no where in 11.54 is the ceiling exemption expressed.  It is a
horrible reference but 6.13.030 is only pulling the exemption amount to the
homestead statute.  It is an aggregate amount so the combination of real,
personal, investment, etc is all combined to reflect the exempt amount (I
find Mike accurately states whether it is c/p or separate prop).  However,
there is an opportunity to seek an increased award, so just like a creditor
can seek for a reduction so the petition can seek for an increase.

That is my humble interpretation - hope my rambling assists


Paul H. Grant - JD, LL.M

Planning with Purpose, Inc
Lynnwood, WA 98036
425-939-9948
www.planningwithpurposeinc.com

Estate Planning. Business Planning. Wealth Succession.

On Tue, Sep 15, 2015 at 2:21 PM, Eric Nelsen <Eric at sayrelawoffices.com>
wrote:

> I'm having trouble figuring out exactly what assets count toward the
> family support award, and also what the heck is covered by RCW 11.54.080
> <http://app.leg.wa.gov/rcw/default.aspx?cite=11.54&full=true#11.54.080>
> re "additional exempt assets."
>
>
>
> I get that the basic family support award is $125,000, and the assets
> awarded are exempt from all other claims against the estate (except secured
> creditors).
>
>
>
> First question: The award also protects the survivor's half of community
> property, not just the half owned by the decedent. RCW 11.54.070(2)
> <http://app.leg.wa.gov/rcw/default.aspx?cite=11.54&full=true#11.54.070>.
> Does the survivor's half interest count toward the $125,000, or is the
> survivor's half *in addition to* $125,000 inherited from the deceased
> spouse's estate? RCW 11.54.010(1)
> <http://app.leg.wa.gov/rcw/default.aspx?cite=11.54&full=true#11.54.010>
> says the award is from the "property of the decedent." To me, that means
> $125,000 from the decedent's half of community property, and then the
> survivor's half is also protected even though that means more than $125,000
> is ultimately protected. Am I being piggy?
>
>
>
> Second question: What the heck kind of assets can be protected as
> "additional exempt assets" under RCW 11.54.080
> <http://app.leg.wa.gov/rcw/default.aspx?cite=11.54&full=true#11.54.080>?
> Subsec (1) says "This section applies if the party entitled to petition for
> an award holds exempt property that is in an aggregate amount less than
> [$125,000]." What does "exempt property" even mean in this statute? It's
> undefined in RCW 11.54 and trying to import the meaning of "exempt" from
> RCW 6.13 or RCW 6.15 doesn't seem to make sense. I don't think it means the
> survivor's half of community property, because that appears to already be
> protected under the general award. Section .080 also suggests that a child
> of decedent could be holding "exempt property"--but what could a decedent's
> child be holding that the parent's creditors could possibly affect, unless
> it's already an asset of the estate?
>
>
>
> I have a suspicion I'm making this too complicated, but can't seem to find
> my way out. Any sage advice out there?
>
>
>
> Sincerely,
>
>
>
> Eric
>
>
>
> Eric C. Nelsen
>
> SAYRE LAW OFFICES, PLLC
>
> 1320 University St
>
> Seattle WA  98101-2837
>
> phone 206-625-0092
>
> fax 206-625-9040
>
>
>
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