[WSBAPT] Community property vs old Will

[Eric Nelsen]

Sounds to me that:


  1.  House is presumptively community property because purchased in 2013 during the marriage. If there's evidence that the husband used separate property (pre-marriage) source of funds to purchase the house, then the kids might rebut the presumption and argue that it's separate property, or some portion of it is separate property instead of community. (The names on the deed don't matter here; what matters is evidence of source of funds. If there were traceable separate funds contributed to purchase the house, then a portion of it might be separate property. In the absence of evidence re source of funds to purchase, it will be presumed to be wholly community property.)
  2.  1990s Will is a "copy" you say, not an original. If the original can't be found, it's presumed destroyed with intent to revoke, in the absence of evidence to the contrary.
  3.  Even if the original Will is found and/or a copy is proved under RCW 11.20.070, its distributive scheme is altered by the omitted spouse statute, RCW 11.12.095<https://app.leg.wa.gov/RCW/default.aspx?cite=11.12.095>, which requires the spouse to receive no less than she would receive by intestacy, "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." That should override any question concerning RCW 26.16.030-due to RCW 11.12.095, a Will that predates a marriage effectively can't give any community property to anyone other than the surviving spouse. So if the house is wholly community property, she gets the whole thing. If it's partly husband's separate property, she'll get all the community plus 50% of the separate property interest under intestacy rules.
  4.  Unless the kids can find clear and concvincing evidence that dad deliberately considered updating the Will, and decided not to, and was under the (mistaken) impression that it would operate as written because he didn't know about RCW 11.12.095, and had firm expressed opinions (in writing or to witnesses who aren't barred by dead man's statute) that his new wife should not receive their community property, I don't think the wife is likely to lose any part of the house to the kids, except to the extent separate property funds provably contributed to purchase the house.
  5.  Even if the kids do manage that, the wife could petition for family support (homestead) under Ch. 11.54 RCW and request an award that would draw assets back to her against the kids' interests. The family support public policy is very strongly in favor of surviving spouses, especially against adult children who are self-supporting.

Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
206-625-0092
eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Timothy Lehr
Sent: Monday, September 18, 2023 2:45 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Community property vs old Will

All,

Client marries man. It's both their second marriages and man has 4 kids from his previous marriage. Client and man purchase a house around 2013 and take title "as husband and wife." Man passes away a few years ago. No probate is ever opened as most assets held jointly.

Wife is planning on selling the house her and man bought together. She'll need to clear his name off of title. There is no community property agreement and wife finds a copy of man's old Will from 1990s. She says she is unaware of any subsequent Will (they never had estate planning done together). The old Will is from man's first marriage and gives everything to his 1st wife. The contingent beneficiaries after 1st wife are his kids. 1st wife passed away in 2003.

My question - is wife entitled to the house they purchased together or does the old 1990 Will, giving man's residuary to his kids, add a wrinkle under RCW 26.16.030? Seems like the fact he never updated his Will might result in kids having some sort of interest?

Timothy C. Lehr
Attorney & Partner

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