[WSBAPT] Omitted Spouse & Homestead Award

Fri Jun 17 13:10:11 PDT 2022

RCW 11.12.095 <http://app.leg.wa.gov/RCW/default.aspx?cite=11.12.095>
Omitted spouse or omitted domestic partner.
(1) If a will fails to name or provide for a spouse or domestic partner of
the decedent whom the decedent marries or enters into a domestic
partnership after the will's execution and who survives the decedent,
referred to in this section as an "omitted spouse" or "omitted domestic
partner," the spouse or domestic partner must receive a portion of the
decedent's estate as provided in subsection (3) of this section, unless it
appears either from the will or from other clear and convincing evidence
that the failure was intentional.
(2) In determining whether an omitted spouse or omitted domestic partner
has been named or provided for, the following rules apply:
(a) A spouse or domestic partner identified in a will by name is considered
named whether identified as a spouse or domestic partner or in any other
manner.
(b) A reference in a will to the decedent's future spouse or spouses or
future domestic partner or partners, or words of similar import,
constitutes a naming of a spouse or domestic partner whom the decedent
later marries or with whom the decedent enters into a domestic partnership.
A reference to another class such as the decedent's heirs or family does
not constitute a naming of a spouse or domestic partner who falls within
the class.
(c) A nominal interest in an estate does not constitute a provision for a
spouse or domestic partner receiving the interest.
(3) The omitted spouse or omitted domestic partner must receive an amount
equal in value to that which the spouse or domestic partner would have
received under RCW 11.04.015
<http://app.leg.wa.gov/RCW/default.aspx?cite=11.04.015> if the decedent had
died intestate, unless the court determines on the basis of clear and
convincing evidence that a smaller share, including no share at all, is
more in keeping with the decedent's intent. In making the determination the
court may consider, among other things, the spouse's or domestic partner's
property interests under applicable community property or quasi-community
property laws, the various elements of the decedent's dispositive scheme,
and a marriage settlement or settlement in a domestic partnership or other
provision and provisions for the omitted spouse or omitted domestic partner
outside the decedent's will.
(4) In satisfying a share provided by this section, the bequests made by
the will abate as provided in chapter 11.10
<http://app.leg.wa.gov/RCW/default.aspx?cite=11.10> RCW.
[ 2008 c 6 § 911
<http://lawfilesext.leg.wa.gov/biennium/2007-08/Pdf/Bills/Session%20Laws/House/3104-S2.SL.pdf?cite=2008%20c%206%20%C2%A7%20911>
; 1994 c 221 § 10
<http://lawfilesext.leg.wa.gov/biennium/1993-94/Pdf/Bills/Session%20Laws/House/2270-S.SL.pdf?cite=1994%20c%20221%20%C2%A7%2010>
.]

*Sarah O’Farrell McCarthy*

*(Pronouns: she / her)*Attorney | Kelly, Arndt & Walker, Attorneys at Law,
PLLP
P.O. Box 290 | 6443 Harding Avenue | Clinton, WA  98236

(Located on Whidbey Island, Island County, Washington)
Phone: (360) 341-1515 | Fax: (360) 341-3272
sarah at kawlawyers.com | www.kawlawyers.com

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On Fri, Jun 17, 2022 at 1:09 PM Jamia Burns <jamia at jamiaburnslaw.com> wrote:

> It seems that it would hinge on when the will was signed. If the will was
> executed prior to the marriage, then see RCW 11.12.095 (Omitted spouse or
> omitted domestic partner). If the will was executed after the marriage and
> the spouse is mentioned in the will, then they were not "omitted".
>
> Jamia S. Burns
> Attorney at Law
> (360) 739-6379
> Office: 1200 Dupont St., Suite 1-D
> Bellingham, WA 98225 (By Appointment Only)
> jamia at jamiaburnslaw.com
> www.jamiaburnslaw.com
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> On Fri, Jun 17, 2022 at 12:44 PM Diane J. Kiepe <DJKiepe at depdslaw.com>
> wrote:
>
>> So, I’m just going to vulnerably say, I have not been educated on, nor
>> heard of a specific “omitted spouse” claim allowed for according to WA
>> law.  I have been, and suppose at this moment, under the belief that one
>> can omit a spouse in community property states – they get their ½ but they
>> can’t force you to give them any of your ½.  The family allowance comes in
>> for support during probate – it’s not needed where the survivor’s ½ is
>> sufficient for his/her current and other needs.  I’d love to hear from some
>> of you on your citations for omitted spouse and how your cases have gone.
>>
>>
>>
>> *Diane J. Kiepe*
>>
>>
>>
>> Diane J. Kiepe
>>
>> Douglas Eden
>>
>> 717 W. Sprague Ave.
>>
>> Suite 1500
>>
>> Spokane, WA  99201
>>
>> djkiepe at depdslaw.com
>>
>> 509-455-5300
>>
>>
>>
>> *From:* wsbapt-bounces at lists.wsbarppt.com <
>> wsbapt-bounces at lists.wsbarppt.com> *On Behalf Of *James W. Spencer
>> *Sent:* Thursday, June 16, 2022 4:33 PM
>> *To:* WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
>> *Subject:* Re: [WSBAPT] Omitted Spouse & Homestead Award
>>
>>
>>
>> Greetings Shannon:
>>
>>
>>
>> Recall that if the surviving spouse petitions for a family support award,
>> it opens the door for minor or adult children from decedent’s prior
>> marriage(s) to seek a share of that award. *See* RCW 11.545.010(1). If
>> there are children from a prior marriage, and the outcome is approximately
>> the same, I might advise towards the omitted spouse claim instead.
>> Obviously, it is all very fact specific.
>>
>>
>>
>> Best of luck!
>>
>> -James
>>
>>
>>
>> James W. Spencer *(he/him)*
>>
>> Attorney at Law
>>
>> Brothers & Henderson, P.S.
>>
>> 936 N 34th St, Suite 200
>>
>> Seattle, Washington 98103
>>
>> Phone: (206) 324-4300 x106
>>
>> Fax: (206) 324-3106
>>
>> e-mail:  jamess at brothershenderson.com
>>
>> www.brothershenderson.com
>>
>>
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>>
>> *From:* wsbapt-bounces at lists.wsbarppt.com <
>> wsbapt-bounces at lists.wsbarppt.com> *On Behalf Of *Shannon Jones
>> *Sent:* Thursday, June 16, 2022 12:16 PM
>> *To:* WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
>> *Subject:* [WSBAPT] Omitted Spouse & Homestead Award
>>
>>
>>
>> Listmates, I am considering filing TEDRA for an omitted spouse and
>> seeking family support award as alternatives for relief. If successful,
>> result to petitioner could be roughly equivalent value. Is there a reason I
>> would instead choose one over the other rather than plead in the
>> alternative? I see the SOL for family support award, but is there an SOL
>> for an omitted spouse petition? Thanks in advance for any thoughts on this
>> - Shannon
>>
>>
>>
>> *Shannon R. Jones | Attorney *
>>
>> Campbell Barnett PLLC
>>
>> Direct:  253.848.3515
>>
>> Office: 253.848.3513| Fax: 253.845.4941
>>
>> 317 South Meridian
>>
>> Puyallup, WA 98371
>>
>> shannonj at campbellbarnettlaw.com
>>
>> campbellbarnettlaw.com
>>
>>
>>
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