[WSBAPT] Surviving Spouse of Intestate Heir signing on behalf of estate without probate

[Eric Nelsen]

I agree with James. I haven't seen any case law on it yet, but I would love to take up on appeal an equitable division of CIR property at death of one partner, of 100% to the survivor and 0% to the estate, as being proper under the right circumstances.

So far as I know we have no guidance yet on what equitable factors should be considered in a division between a deceased CIR partner and a survivor. With a breakup where both parties are still living, the court is supposed to look to the usual divorce-like factors, and generally look at what the parties' economic circumstances will be for their lives going forward. Obviously that isn't the consideration when one of them is deceased. So what guides equity in dividing property between a surviving long-term partner and the heirs-at-law of the decedent? Case law doesn't tell us yet. Olver involved a situation where both parties were deceased, but it didn't get into how to equitably divide between the estates; I think it remanded to the trial court for the equitable division.

I think a TEDRA agreement between sister/heir and CIR partner works. The issue is not "who inherits" but rather, "what belongs to the estate." It's an inventory question, not an inheritance question. If it "belongs to the estate" then the sister gets it. If it belongs to the CIR partner, then sister has no claim to it. I think it's Olver that specifically says that the CIR division is a question of inventory rather than inheritance. See also Estate of Langeland, 177 Wn.App. 315, 329 (2013).

Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
206-625-0092
eric at sayrelawoffices.com

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of James W. Spencer
Sent: Wednesday, February 5, 2020 3:36 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Surviving Spouse of Intestate Heir signing on behalf of estate without probate

Greetings Julie:

If I'm understanding the call of the question, I believe you may have a pathway to the desired result by way of the committed intimate relationship doctrine and TEDRA.

Recall that Olver v. Fowler, 161 Wash.2d 655 held that only after the contents of the estate are inventoried can the PR distribute the contents of the estate according to a valid will or the rules of intestacy. Estate assets are exclusive of the assets to which the surviving CIR partner would be entitled upon equitable division by the court.

Would it be possible to go to court to get an order awarding all assets to the surviving partner? Possibly. I've done this, but only after providing notice to all of the legal heirs, none of which appeared. I believe that you could forgo such a petition and reach agreement with the surviving spouse through a nonjudicial binding agreement where the partner and sister's husband agree that she is the CIR partner, and that equitable division of the assets would be 100% to her. Does he have the authority to enter into such an agreement without being appointed PR of his wife's estate? I don't know. Perhaps something under 11.96A.120 could apply. I would also memorialize in the agreement that husband is heir under IN law, citing to the IN statute.

The fly in the ointment is Peffley-Warner v. Bowen, 113 Wash.2d 243 which held that a surviving CIR partner is not a spouse for the purposes of intestacy or survivorship benefits. It did not hold, however, that the court could not make an equitable distribution of all of the decedent's property to the surviving CIR partner. To the best of my knowledge, there is no settled law on this. Assuming that you were able to find a way to have sister's husband bind her estate, I would have some of the concerns that Kristen expressed below because of Peffley-Warner, namely whether there is indeed a cousin out there who may come in and argue that the TEDRA agreement was actually a disclaimer because the CIR partner should not inherit all of the community-like property. I reckon family makeup could dictate your ultimate course of action here.

So, depending on whether I thought there was much likelihood that a more distant heir of sister's estate would become problematic, I would probably be comfortable pursuing this through TEDRA, but only with lots of CYA language from me to the client about potential long-term pitfalls. I don't think I would ask the court to "approve" the nonjudicial binding agreement. If I were going that route, I might instead draft a petition to determine CIR and equitably divide property, support it with a declaration from sister's husband that he is her only legal heir and that he supports 100% distribution to the surviving partner, and then ask the court to rule. Problem is that you may not get the desired result....

Happy to chat more if you have questions.

Best wishes,
James

James W. Spencer
Attorney at Law
Brothers & Henderson, P.S.
2722 Eastlake Avenue East, Suite 200
Seattle, Washington 98102
Phone: (206) 324-4300 x106
Fax: (206) 324-3106
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From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> On Behalf Of Kristen Fisher
Sent: Wednesday, February 5, 2020 2:46 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Surviving Spouse of Intestate Heir signing on behalf of estate without probate

I think you need to consider that if the sister's estate disclaims, the Decedent's estate passes to the next intestate heirs. Neither the sister's estate, nor the sister's husband, can disclaim on behalf of the other intestate heirs, even if you have not yet identified who those people are. Undoubtedly, there is at least a cousin out there somewhere.

The only way that I think of to accomplish the result the partner desires would be for decedent's estate to be distributed to the sister's estate, the sister's estate to distribute decedent's estate to sister's husband and then sister's husband would have to make a gift to the decedent's partner. Also consider that the partner may also an independent claim to community-like assets as well.


Kristen Fisher, Attorney
Ridgway Law Group
701 Fifth Avenue, Suite 4640
Seattle, WA  98104 - 7073
Tel: 206.838.2501
Fax 206.839.5702
email: kristen at ridgwaylawgroup.com<mailto:kristen at ridgwaylawgroup.com>


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From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> On Behalf Of Julie Martiniello
Sent: Wednesday, February 05, 2020 2:18 PM
To: Trust and Probate Section <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] Surviving Spouse of Intestate Heir signing on behalf of estate without probate

Hello All,

I have a first time situation on my hands and am hoping someone on this list has some guidance they could provide.

Decedent passed away intestate, leaving a (unmarried) partner. Decedent's sister is technically his only heir. His sister lived in Indiana and passed away 1 month after Decedent, so her estate is now the heir. She was survived by her husband and had no children. According to Indiana law, surviving spouse is sole heir of the sister's estate.

Surviving partner has been with Decedent for over 20 years. The surviving spouse of Decedent's sister has agreed to the appointment of Partner as PR and has also agreed that Partner should be entitled to all of Decedent's assets. He is willing to cooperate in that he will sign off on agreements to this effect.

The issue is that in Indiana, the surviving spouse does not need to open a probate for Decedent's sister. Can the sister's surviving spouse sign waivers, a TEDRA agreement, and/or consent to the distribution of the property to my client as the sole heir of the sister's estate without her probate being opened?

While, surviving spouse is happy to help with the process to some extent, I do not foresee that he would want to go as far as opening a probate in Indiana for this.

I have been toying with the correct way to go about this. If I do get the surviving spouse to sign off on everything, I am thinking that instead of doing a NJBA, I would submit a TEDRA agreement to the court for approval given that there is no probate for the sister. I just have never encountered this issue before, so any advice or direction would be appreciated! Thank you in advance for any insight!

--
Respectfully,

JULIE A. MARTINIELLO | PARTNER | DIMENSION LAW GROUP PLLC
130 Andover Park East, Suite 300 | Tukwila, WA 98188
t: 206.973.3500 | f: 206.577.5090| e: JULIE at dimensionlaw.com|<mailto:JULIE at dimensionlaw.com|> www.dimensionlaw.com<http://www.dimensionlaw.com/>


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