[WSBAPT] Is SS liable on note that decedent co-signed on?

[Eric Nelsen]

Having recently tried to disentangle the status of a community debt still outstanding more than 2 years after death of the first spouse, here's my thought: Probate of the first spouse to die has jurisdiction over the entirety of community asset and community liabilities. Community liability must be addressed in first spouse's probate, or it is barred.

Briefing:

The death of a spouse terminates the marital relationship and the "marital community." Bank of Montreal v. Buchanan, 32 Wn. 480, 73 P. 482 (1903); see also Washington State Bar Assn. Community Property Deskbook (4th ed. 2014) (hereinafter "CP Deskbook"), Sec. 4.11. At death of the first spouse, the community "ceases to exist." Sutton v. Hirvonen, 113 Wn.2d 1, 6, 775 P.2d 448 (1989). The first deceased spouse's Estate accordingly has jurisdiction over all community property and community liability, not just the decedent's half, in order to dispose of all community matters. Ruth v. Dight, 75 Wn.2d 660, 670, 453 P.2d 631 (1969) (claim against the community cannot be pursued against surviving spouse if not also properly brought against the deceased spouse's estate); Gilliam v. City of Centralia, 14 Wn.2d 523, 531, 128 P.2d 661 (1942) (deceased spouse's Personal Representative, not the surviving spouse, has authority to pursue a community claim); Magee v. Big Bend Land Co., 51 Wash. 406, 408, 99 P. 16 (1909) (administration of first spouse's estate had jurisdiction and authority to sell the entire community real property). See also CP Deskbook, Sec. 4.13.

That said, I presented this argument in a summary judgment matter and the court didn't follow it. The procedural stance was complicated and not as straightforward as addressing a community liability, however, so past ruling is not necessarily an indication of future results.

Sincerely,

Eric

Eric C. Nelsen
SAYRE LAW OFFICES, PLLC
1417 31st Ave South
Seattle WA  98144-3909
phone 206-625-0092
fax 206-625-9040

Please Note that We Have Moved. We have moved our Seattle office to Mount Baker Ridge (a small commercial community just above the I-90 tunnel). Our new address is 1417 31st Avenue South, Seattle WA 98144. All other contact information remains the same.

From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Kristina devore
Sent: Friday, February 03, 2017 11:53 AM
To: WSBA Probate & Trust Listserv
Subject: [WSBAPT] Is SS liable on note that decedent co-signed on?

Listmates,

H passed two years ago.  H had co-signed on his son’s student loan.  W (step-mother of son and married to H at time he co-signed) did not co-sign on loan.  No probate necessary when H passed as all property was community and there was a CPA in place.  Also, did not do a non-probate notice to creditors.  W is concerned that step son will default on loan and wants to know if she will be liable to pay.

I’m thinking that since it has been over two years since H died that a creditor is barred from collecting the debt from H’s estate.  Is this correct?  Any thoughts?

Thanks in advance,
Kristina



Kristina S. DeVore | Attorney & Counselor at Law
KRISTINA DEVORE LAW FIRM, pllc | 201 NE Park Plaza Dr., Ste., 290 | Vancouver, WA  98684
Phone: (360) 695-0535 | Fax (360) 737-4154 | Kristina at devore-law.com<mailto:Kristina at devore-law.com>




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