[WSBAPT] Effect of Decree of Separation on Intestate Succession

[Tara M. Roberts]

I recently probated a couple of estates that involved legal separations.

 

The parties legally separated, but the Decree of Separation did not contain
any provision that the marriage had been dissolved, invalidated, or
terminated, just a division of property and debts, separation of the
individuals to different residences, and name changes.  No motion had been
filed by either party to convert the decree of legal separation to a decree
of dissolution (RCW 26.09.150).

 

Therefore, the surviving spouse remained the spouse for inheritance
purposes.

 

In one of my cases, we had a confirming codicil executed after the
separation to acknowledge the separation and confirm continued appointment
as PR and as heir, which made things easier.  But the other was an intestate
administration, surviving spouse applied and was appointed as PR and
inherited typical intestate share.

 

I included a recitation of all the facts about the status of the marriage
and a clear finding of heirship in the petition and orders for probate,
including incorporation by reference of the Decree of Separation (both were
King County, same as probates) and a working copy for the judge.  The only
comment from Commissioners has been "interesting facts" as they hand back
the Orders.

 

The community property agreement creates an interesting twist.  Check the
decree to see of the community property agreement was revoked.  Or if the
community property agreement has an automatic revocation provision.  Are
there facts related to the separation to support a revocation of the
community property agreement by the actions of both parties? The
well-crafted Decree of Separation should deal with community property versus
separate property and the hopefully the agreement.  Do-it-yourself pro se
drafted decree may create another research project.

 

A revocation of the community property agreement may change the allocation
of assets and what is distributable to the surviving spouse.  Surviving
spouse will get 100% of the community property and either 50% or 75% of the
separate property, depending on whether there are issue of the decedent
surviving.

 

But if the marriage wasn't terminated, then you still have a Surviving
Spouse that will get something.

 

Tara M. Roberts

Puget Sound Law pllc

 <mailto:roberts at pugetsoundlaw.com> 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 Bickel, Dwight
Sent: Wednesday, May 3, 2017 3:17 PM
To: wsbapt at lists.wsbarppt.com
Subject: [WSBAPT] Effect of Decree of Separation on Intestate Succession

 

It is unsettling to discover that you may have been wrong about something
for decades. Hopefully, one of you can respond confirming the correct
answer. 

 

Community property, clearly created by recorded CPA.

Then a Decree of Legal Separation. 

The relevant real property is vested to one spouse as separate, with only a
lien given to the other spouse for specific payment.

Vested spouse dies, intestate.

 

My research today leads me to conclude that the non-vested spouse is a
surviving spouse entitled to inherit the property. That is not the answer I
expected. The other heirs of vested spouse aren't going to like that. Can
anyone confirm that is correct, or refer me to authority.

 

 

 

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