[WSBAPT] Probate Q - legally separated at time of death with orders in place

[Dalynne Singleton]

I have a potential client who is the daughter of the decedent.  She has an attorney to assist her with the wrongful death claims on behalf of her and her sister and have asked me to open probate, appoint her as Administrator and assist with gathering her father's assets.  The father was legally separated from the step-mother at time of his death and there was an Order in LS dividing assets and debts.

Upon death, since it is intestacy, is the probate court bound by the legal separation order or is it null and void upon death?

I had this come up recently in another probate in Snohomish in which the parties were legally separated but there was NO order of division of property.  The Judge ruled against my client (widow) that the LS division of property as presented in the Petition for LS bound the widow to no interest in the property after death of the husband.  My research had not provided me with this answer:

At death of a spouse, the community is dissolved and former community property becomes separate property of decedent's estate and of the surviving spouse, and decedent's one-half interest is subject to testamentary disposition.  Matter of Estate of Politoff, 36 Wash. App. 424, 674 P.2d 687 (1984); Marriage And Cohabitation.  Any property or assets which were community property prior to Richard O's death shall be determined to be 50/50 spousal property upon the death of Richard O.  No evidence to the contrary has been provided and as such, 50% of these former community property assets belong to Barbara O by right.  The remaining 50% of CP shall pass according to Richard O's Will pursuant to RCW 11.84.040.

Dalynne Singleton

Gourley Law Group
Snohomish Escrow
The Exchange Connection
1002 10th Street Box 13
PO Box 1091
Snohomish, WA 98291

360.568.5065
360.329.4079
360.568.8092  fax
dalynne at glgmail.com<mailto:dalynne at glgmail.com>
Due to COVID-19, I am working remotely.  As a result, I cannot accept any physical messenger service at this time.  Please email all pleadings and agreed upon service documents to my email.  In-person meetings are not possible at this time.  Email is the best way to reach me until further notice.  If you would like a telephone or Zoom conference, please email my probate paralegal theresa at glgmail.com<mailto:theresa at glgmail.com> or my personal injury paralegal dara at glgmail.com<mailto:dara at glgmail.com> to set such conference.

Thank you very much and stay safe!
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