[WSBAPT] Omitted Spouse Involving RLT and Pour Over Will

[Nicholas Pleasants]

Take a closer look at RCW 11.54.010(2). It attaches to community and separate property, as well as probate or nonprobate assets. So it can absolutely be used to soak up property out of the RLT. Depending on the size of the estate, that may be the path of least resistance. I have seen it used to pull in IRA proceeds as well as separate bank accounts that had beneficiaries designated (effectively overriding the beneficiary designation at the financial institution). It is a powerful tool, although theoretically limited to $125,000 + whatever the commissioner is willing to go up to.
There is also some ambiguity in your fact pattern. At date of death, was the RLT actually funded? Or is the executor relying on the pour-over aspect of the Will? If the latter, then note that the bequest to the RLT could be abated under RCW 11.12.095(4) to satisfy the 50% of separate property to omitted spouse. If RLT was funded prior to death, that may be more difficult to argue. I am curious what your research finds on the applicability of RCW 11.12.095 to RLT assets.
Sounds like this was a later marriage or second marriage, so surviving spouse needs to be willing to negotiate with step-kids or in-laws to get a fair shake.

Nicholas Pleasants
Pleasants Law Firm, P.S.
2300 130th Ave NE, Suite A-101
Bellevue, WA 98005-1755
(425) 615-7070 tel.
(425) 497-0799 fax
nick at pleasantslaw.com<mailto:nick at pleasantslaw.com>
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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Inge Fordham
Sent: Monday, August 3, 2020 1:38 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Omitted Spouse Involving RLT and Pour Over Will

Colleagues,

PC is surviving spouse and was omitted from decedent’s will, which was executed prior to the date of the marriage.  The will is a pour over will that leaves the estate to a RLT that was created decades ago (well before the creation of the pour over will).  Under the omitted spouse statute, PC would be entitled to 100% of the community property and 50% of the decedent’s separate property.  Assume, for purposes of this exercise, that there is little or no community property.

If all or a majority of what would otherwise be considered “separate property” is actually held in a RLT that was created by the decedent prior to the date of the marriage, does PC have any claim to those assets?  It seems that if the Legislature intended the omitted spouse statute to apply to trust assets, it would have provided as much.  RCW 11.98, et seq. does not have a provision similar to RCW 11.12.095.  RCW 11.54.010 is also limited to community versus separate property.  What is the effect?  Is PC’s claim limited to 50% of the separate property that was not already transferred into the RLT and would therefore be subject to the pour over will?

Thank you in advance for your thoughts.


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Inge A. Fordham | Attorney
Fordham Law, PLLC
3218 Sixth Avenue | Tacoma, WA 98406
Office: (253) 348-2657 | Mobile: (206) 778-3131
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