[WSBAPT] Joint Tenancy and Community Property

[Mark Anderson]

H and W each acquired separate property rights prior to marriage.  At first blush, those property rights should still be the separate property of each spouse following marriage.  See RCW 26.16.010.

Also see RCW 64.28.040 (1), which says "Joint tenancy interests held in the name of both spouses or both domestic partners, ....are presumed to be their community property, the same as other property held in the name of both spouses or both domestic partners.  Any such interest passes to the survivor of the spouse or survivor of the domestic partner as provided for property held in joint tenancy, but in all other respects the interest is treated as community property."

So even if the property is deemed to be community property as between H and W, interest in the property, by operation of law, automatically passes to the survivor just as it would with any other joint tenancy.  That means that W should now be free to dispose of the property.

Mark B. Anderson
ANDERSON LAW FIRM PLLC
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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of James Jackson
Sent: 07/19/2023 3:56 PM
To: wsbapt at lists.wsbarppt.com
Subject: [WSBAPT] Joint Tenancy and Community Property

Listmates,

I'm scratching my head over this.

Prior to marriage, H&W purchased real property as JTROS.  They got married a few years later.

H subsequently executed a Will in which he left all his separate and community property to his daughter (not W's child).

H & W decided to sell the property, signed a listing agreement and P&S.

H died a few weeks ago.

Buyers are eager to close, but the Title Company's underwriter believes that the joint tenancy was converted to community property on the day they were married "by operation of law", and that we need the PR's or daughter's authority.

I can't find any authority for that, and have held firm that the "superwill" statute does not apply to real property held as JTROS.

Any suggestion would be helpful.


James A. Jackson
Ketter Sheppard & Jackson, LLP
50 - 116th Avenue SE - Suite 201
Bellevue, WA 98004
T: (206) 382-2600
C: (206) 397-3853
F: (206) 223-3929

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