[WSBAPT] Rights of disinherited surviving spouse after separation?

[Eric Nelsen]

Here's my analysis, for what it's worth. Good resource for case law and statutory references is the WSBA Community Property Deskbook (4th ed. 2014).

Decedent (D) purchased the property in 1989 while unmarried. Characterization is determined at time of acquisition, so the property is D's separate property. If it was financed, then the debt on it is also D's separate debt. See Deskbook Ch. 3.1, 3.2(14).

D and Spouse (S) get married in 1994 and separate in 1999. During that 5-year interval, if they made payments on that property debt, using community funds (such as earnings), then arguably the community would have an equitable right to reimbursement for the use of community funds to pay D's separate debt. Unless D had a big savings account of separate funds going in to the marriage from which D could have made the payments, the most likely presumption will be that payments made on debt during that time will have been from community funds. See Deskbook Ch. 3.4.

D and S remain separated but married from 1999 until D's death in 2017. During this interval, you're reliant on RCW 26.16.140<http://app.leg.wa.gov/RCW/default.aspx?cite=26.16.140>, which states in relevant part: "When spouses or domestic partners are living separate and apart, their respective earnings and accumulations shall be the separate property of each." So when you say they never reconciled, I hope that means they continued to demonstrably live apart and not commingle finances or otherwise behave as married. See Deskbook Ch. 3.3(4).

So now, in 2017, S has in theory a potential claim for one-half of the community's claim for equitable reimbursement of community funds used to pay the debt on the property between date of marriage in 1994, and date of separation in 1999. However, there are multiple defenses and setoffs available against such a claim--which is a much longer conversation. If it's relevant, call me or email me offline to discuss.

The biggest pain here is that S is still a surviving spouse under the statutes, and you have to treat S that way--give S notice of petition to commence the probate under RCW 11.28.131, etc. But I think that is the safest route; give S all the notice and due process to make sure any potential claim is completely barred by the probate administration.

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

From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Conor Buie
Sent: Wednesday, August 22, 2018 5:05 PM
To: wsbapt at lists.wsbarppt.com
Cc: crystal at lambertlawpllc.com
Subject: [WSBAPT] Rights of disinherited surviving spouse after separation?

Looking for some guidance on a case where I represent the estate:

Decedent acquired a piece of real property in Skamania County in 1989. Decedent then married in 1994. Decedent and spouse separated in 1999 - dissolution case was started in Clark County by the spouse, but was dismissed in 2001 for want of prosecution. Parties never reconciled. Spouse listed the real property as Decedent's separate property in Petition for Dissolution. Title to property was never vested in the spouse.

In a codicil to her will executed in 2001, Decedent specifically disinherits/excludes spouse from inheriting anything from her estate. Decedent passed away December 2017. The question is: what claim, if any, does the "spouse" have in her estate? Decedent has an adult child not of the '94 marriage who is the PR and named as sole heir in her codicil. The only asset of any value is the property Decedent acquired in 1989, which was prior to the marriage.

Any insight would be appreciated.

Conor P. Buie
Attorney at Law
Lambert Law Office PLLC
900 Washington Street, Suite 1010
Vancouver, WA 98660
phone (360)737-1473
fax (360)859-5259
conor at LambertLawPLLC.com<mailto:conor at LambertLawPLLC.com>
www.lambertlawpllc.com<http://www.lambertlawpllc.com/>

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/wsbapt/attachments/20180823/141aeeda/attachment.html>