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

Fri Jul 2 09:44:01 PDT 2021

Is there any language in the Trust that would provide for post-death amendment or revocation? Is there by chance a power of appointment? Any way to get rid of it after the fact?
Any arguments that could be made that there was some kind of a writing by decedent that she would want her child to inherit from her that could be used in a TEDRA petition (see below)?

RCW 11.103.030<http://app.leg.wa.gov/RCW/default.aspx?cite=11.103.030>
Revocation or amendment. (Effective until January 1, 2022.)
(1) Unless the terms of a trust expressly provide that the trust is revocable, the trustor may not revoke or amend the trust.
(2) If a revocable trust is created or funded by more than one trustor and unless the trust agreement provides otherwise:
(a) To the extent the trust consists of community property, the trust may be revoked by either spouse or either domestic partner acting alone but may be amended only by joint action of both spouses or both domestic partners;
(b) To the extent the trust consists of property other than community property, each trustor may revoke or amend the trust with regard to the portion of the trust property attributable to that trustor's contribution;
(c) The character of community property or separate property is unaffected by its transfer to and from a revocable trust; and
(d) Upon the revocation or amendment of the trust by fewer than all of the trustors, the trustee must promptly notify the other trustors of the revocation or amendment.
(3) The trustor may revoke or amend a revocable trust:
(a) By substantial compliance with a method provided in the terms of the trust; or
(b)(i) If the terms of the trust do not provide a method or the method provided in the terms is not expressly made exclusive, by:
(A) A later will or codicil that expressly refers to the trust or specifically devises property that would otherwise have passed according to the terms of the trust; or
(B) A written instrument signed by the trustor evidencing intent to revoke or amend.
(ii) The requirements of chapter 11.11<http://app.leg.wa.gov/RCW/default.aspx?cite=11.11> RCW do not apply to revocation or amendment of a revocable trust under (b)(i) of this subsection.
(4) Upon revocation of a revocable trust, the trustee must deliver the trust property as the trustor directs.
(5) A trustor's powers with respect to the revocation or amendment of a trust or distribution of the property of a trust may be exercised by the trustor's agent under a power of attorney only to the extent specified in the power of attorney document, as provided in RCW 11.125.240<http://app.leg.wa.gov/RCW/default.aspx?cite=11.125.240> and to the extent consistent with or expressly authorized by the trust agreement.
(6) A guardian of the trustor may exercise a trustor's powers with respect to revocation, amendment, or distribution of trust property only with the approval of the court supervising the guardianship pursuant to *RCW 11.92.140<http://app.leg.wa.gov/RCW/default.aspx?cite=11.92.140>.
(7) A trustee who does not know that a trust has been revoked or amended is not liable to the trustor or trustor's successors in interest for distributions made and other actions taken on the assumption that the trust had not been amended or revoked.
(8) This section does not limit or affect operation of RCW 11.96A.220<http://app.leg.wa.gov/RCW/default.aspx?cite=11.96A.220> through 11.96A.240<http://app.leg.wa.gov/RCW/default.aspx?cite=11.96A.240>.

Jennifer L. White, Esq.
[cid:image001.jpg at 01D76F24.1686D580]

jen at appletreelaw.com<mailto:jen at appletreelaw.com>
PO Box 11037
Yakima, WA 98909
509.225.9813

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Jacob Menashe
Sent: Friday, July 2, 2021 8:05 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

Thank you so much Karen. Just to follow up (with made up facts) if I could: Sally establishes a RLT in 2017 and puts all she has, $1,000,000 in it, and names the Red Cross as beneficiary at her death.  She has a kid, John, in 2019. She passes away unexpectedly in 2020, with $1 million in the trust still being all she has, without having gotten around to changing her RLT. So in this case the Red Cross gets $1,000,000 and baby John gets nothing?

Best,

Jacob

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 Karen E. Boxx
Sent: Friday, July 2, 2021 7:10 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Application of RCW 11.12.095 (Omitted Spouse) to a RLT

Jacob, the omitted spouse and omitted child statutes apply only to probate assets, not assets in a revocable trust.  That’s true, I think, in all states.  It’s not clear to me why states that have elective shares have expanded spousal claims to non probate assets but have not expanded the omitted spouse claims as well.

Karen
Sent from my iPad

On Jul 2, 2021, at 8:46 AM, Jacob Menashe <jacob at hickmanmenashe.com<mailto:jacob at hickmanmenashe.com>> wrote:

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<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto: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<mailto: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
Maple Valley, WA 98038

Email:  davidmoe at maplevalleylaw.com<mailto:davidmoe at maplevalleylaw.com>

CONFIDENTIALITY NOTICE:   This communication is intended for the sole use of the individual and entity to whom it is addressed, and may contain information that is privileged, confidential and exempt from disclosure under applicable law.  If you have received this communication in error, please notify this firm immediately by collect call (425)-432-1277, or by reply to this communication.

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
Sent: Thursday, July 1, 2021 12:31 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
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
4211 Alderwood Mall Blvd., Suite 204
Lynnwood, WA 98036
(425) 744-5658 phone
(425) 744-6078 fax
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