[WSBAPT] Advice needed

[Doug Owens]

Dear Jeffrey, this is an interesting question.  Does the pre-nup contain any community property provisions?  RCW 26.16.120 does not address transfers from separate property to the community, so it would seem that the status of the residence as H separate or community would depend on whether there was donative intent in H at the time of the 2009 deed.  If the intent was solely to facilitate a reverse mortgage then likely the required donative intent for the residence to become community would be missing.  The language of the deed might be enlightening.  Also did W sign the note for the reverse mortgage, becoming personally liable?  That could be an indicator of intent in 2009 that the residence was then community.  Even if the residence is community, though RCW 26.16.030(1) indicates that a spouse may bequeath up to one half of community property and so the intent in H’s 2012 will to bequeath the residence to his son should arguably at least entitle the son to one half of the residence.  The fact that the 2012 H will referred to the residence as H separate property would be a factor but not necessarily the determining factor on whether donative intent existed in 2009, it seems.  Yours truly, Doug Owens

On Nov 8, 2017, at 2:27 PM, jeffrey winter <jdwinter at hotmail.com<mailto:jdwinter at hotmail.com>> wrote:

Listmates,

Question of the day:  H & W enter into a pre-nup in 2004.  In 2009, H signs a warranty deed to himself and wife in order to facilitate a reverse mortgage.  In 2012, H executes his Will, which leaves his residence to his son (from previous relationship)  and the rest of his estate to his wife "except for the separate property" listed in the pre-nup (which included his residence).

H dies first, followed a year later by his wife.  A separate probate is opened for each estate.

During the course of the probates, the estates join together to sell the residence to a third party.

Q:   Do the net proceeds of the sale of the residence get split 50/50 between the estates, or is the wife's estate entitled to all of the proceeds, with H arguably having converted his separate property to community property by virtue of the 2009 deed?

Thank you in advance for your thoughts,

Jeffrey D. Winter

Law Office of Jeffrey D. Winter, P.S.
604 North Main Street
Ellensburg, WA 98926
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