[WSBAPT] Application of RCW 11.12.095 (Omitted Spouse) to a RLT

Fri Jul 2 07:39:27 PDT 2021

Jacob,

Interesting question, but I’m not sure we have enough facts to really provide a useful analysis. Do you mean the decedent executed a revocable living trust and a pour over will as an unmarried person, did not refer in the pour over will to future spouses, and then married and made no changes to include the new spouse in either the will or the trust?

If so, then I think I would be careful to start my analysis with the will, which would seem clearly to have an omitted spouse issue requiring the analysis stipulated by the omitted spouse statue. If there is property subject to probate, then perhaps that property is the easiest to analyze, because it has never been titled to the trust. Such as if they bought a home after marriage and titled it to them as husband and wife, without naming the trust.

I may be wrong, but it seems that step in the analysis would be important before analyzing the property that was titled to trust during the decedent’s lifetime. Then, it seems the analysis might turn to whether it was titled to the trust before marriage or after, and especially perhaps any evidence that the new spouse was aware of the trust. Imagine a home purchased in the name of the trust for which a lender or title company (or the trustee spouse) obtained a quitclaim deed from the new spouse to the trustee spouse. Consider also that property in Trust is not subject to intestacy and so you may have a hurdle to climb to pull it within the omitted spouse statute’s formula.

So, even though I’ve never been hit with this  issue, I think just applying the omitted spouse statute on its own terms would make it important to start with the will and not let the trust or an IRA or anything else derail that initial “step one” analysis, especially given what I will call the “nuance” or “multi-factor test” provided under the omitted spouse statute.

Interesting issue, and would be interested in hearing what you learn or how your case comes out.

Best, Josh

Joshua D. McKarcher
McKarcher Law PLLC
537 6th Street
Clarkston, WA 99403
(509) 758-3345
(509) 758-3314 (fax)
josh at mckarcherlaw.com
www.mckarcherlaw.com<http://www.mckarcherlaw.com>
________________________________
From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> on behalf of Jacob Menashe <jacob at hickmanmenashe.com>
Sent: Friday, July 2, 2021 6:45:53 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Application of RCW 11.12.095 (Omitted Spouse) to a RLT

Hi David,

That’s super helpful and frankly the RCW I was looking for. (I’ll note for anyone reading that I’m sure David meant to cite RCW 11.97.020, not 090.) I’m not sure about the application to the omitted spouse issue but you definitely gave me a start. Thank you!

Has anyone out there applied 11.97.020 to 11.12.095? So far I haven’t found any cases.

Best,

Jacob

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of David Moe
Sent: Thursday, July 1, 2021 2:44 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Application of RCW 11.12.095 (Omitted Spouse) to a RLT

RCW 11.97.090 (?) Trust term interpretation and property disposition—Rules of construction

David Moe Attorney, P.S.

Telephone:  425-432-1277

Fax:  425-432-1280

23745 225th Way SE, Suite 108

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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 Jacob Menashe
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Subject: [WSBAPT] Application of RCW 11.12.095 (Omitted Spouse) to a RLT

I am struggling to answer a question I thought I knew or could find the answer to but I am falling short: Does the omitted spouse statute, RCW 11.12.095, apply when there’s a revocable living trust? I’m going to keep looking but I figured I’d throw out the question and see what responses I get.

Thanks!

Jacob

Jacob H. Menashe

Hickman Menashe, PS

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