[WSBAPT] CPA v TODD

Thu Jan 4 12:10:58 PST 2024

Agree with Prof. Boxx that Lyon is probably the strongest argument but for what it’s worth, if you can gather any facts to support it, you might consider arguments about whether the husband in some way ratified the TODD deed with knowledge that it contradicted the operation of the CPA. Thinking of H’s QCD to W and W’s TODD as partial memorializations of an oral modification to the CPA contract.
Ratification doctrine traditionally concerns conveyance of community property realty, but in this instance you have a purported community right under the CPA versus a clear QCD transfer by H to W that shows an intent to create separate property, and while W had clear separate property rights to the property she made an alternative disposition of it contrary to the CPA. If she did that with H’s knowledge and consent, he might have effectively ratified the TODD.
It's getting a bit creative and maybe extension of existing law, but maybe something in it might give you a way to distinguish Lyon.
Starting point per WSBA Community Property Deskbook Ch. 4.7:
Sander 71 Wn.2d 25 (estopppel)
Whiting v. Johnson 64 Wn.2d 135 (authorization)
Tombari v. Griepp, 55 Wn.2d 771 (ratification)
Campbell v. Webber, 29 Wn.2d 516 (estoppel)
Horse Heaven Irr. Dist., 19 Wn.2d 89 (ratification)
Konnerup v. Frandsen, 8 Wash. 551 (authorization)

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 Mark Anderson
Sent: Thursday, January 4, 2024 11:44 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] CPA v TODD

Ugh.  I’ll look at the Lyon case.  Thanks much!
Mark B. Anderson
ANDERSON LAW FIRM PLLC
821 Dock St  Ste 209  PMB 4-12
Tacoma, Washington 98402
+1 253-327-1750
+1 253-327-1751 (fax)
marka at mbaesq.com<mailto:marka at mbaesq.com>
www.mbaesq.com<http://www.mbaesq.com/>
CONFIDENTIALITY NOTICE
This transmission is confidential and is intended solely for the use of the individual named recipient. It may be protected by the attorney-client privilege, work product doctrine, or other confidentiality protection. If you are not the intended recipient, or the person responsible to deliver it to the intended recipient, be advised that any dissemination, distribution, or copying of this communication is prohibited. If you have received this transmission in error, please immediately notify the sender via e-mail or by telephone at (253) 327-1750 that you have received the message in error, and then delete it. Thank you.

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: 01/04/2024 10:20 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] CPA v TODD

Well, that’s a mess.  You should take a look at Lyon v. Lyon, 100 Wn2d 409.  Issue was which trumped which - the CPA or the fact that title was held by deceased spouse and brother as JTWROS.  Court said both take effect on death, and “which ‘instantaneous event’ takes place first might muddle metaphysicians for millennia.”  The court ultimately decided that since we really like CPA’s in washington, the cpa wins.

Professor Karen E. Boxx

University of Washington School of Law

Box 353020”

Seattle, WA 98195-3020
206.616.3856
Sent from my iPad

On Jan 4, 2024, at 10:10 AM, Mark Anderson <marka at mbaesq.com<mailto:marka at mbaesq.com>> wrote:

Dear All:
Husband and Wife executed (but did not record) a Community Property Agreement in 2009.  One provision in the CPA provides as follows:
"if one party dies, any separate property of that party, except as provided below, shall become and be considered Community Property, subject to this Agreement, vesting at the moment of the decedent's death."
(Note: the "except as provided below" language does not refer to any exception that, at first blush, would appear to apply here.)
Husband subsequently executed and recorded a Quitclaim Deed in which he conveyed a piece of real property owned by the both of them (the "Property") to Wife for her to hold as her separate property.  Wife then executed and recorded a Transfer on Death Deed to transfer the Property to one of their children upon her death.
Question #1: Given that the Property is now Wife's separate property, which document controls the disposition of the Property upon her death?  The CPA or the TODD?
The CPA further provides as follows:
"The survivor may, however, disclaim any interest passing under the terms of this agreement in whole or in part, or with reference to specific assets, parts, portions or shares thereof, in the same manner as provided by law for disclaimers of testamentary bequests, and the disclaimed interest shall pass as if this agreement had been revoked as to the disclaimed property immediately prior to the death of the decedent."
Question #2: Would the Quitclaim Deed be effective as a disclaimer of Husband's interest in the Property so that the disposition of the Property is not controlled by the CPA?
Thanks in advance for all of your insights on this matter.
Mark B. Anderson
ANDERSON LAW FIRM PLLC
821 Dock St  Ste 209  PMB 4-12
Tacoma, Washington 98402
+1 253-327-1750
+1 253-327-1751 (fax)
marka at mbaesq.com<mailto:marka at mbaesq.com>
www.mbaesq.com<https://urldefense.com/v3/__http:/www.mbaesq.com/__;!!K-Hz7m0Vt54!j7B8_ZZg7pT5v5T3zIlXWuQX5bT0kEwotxLUwAin5UMLXq1xTZPvBU5OaB9jQDhbHJjtDSzet3Y1$>
CONFIDENTIALITY NOTICE
This transmission is confidential and is intended solely for the use of the individual named recipient. It may be protected by the attorney-client privilege, work product doctrine, or other confidentiality protection. If you are not the intended recipient, or the person responsible to deliver it to the intended recipient, be advised that any dissemination, distribution, or copying of this communication is prohibited. If you have received this transmission in error, please immediately notify the sender via e-mail or by telephone at (253) 327-1750 that you have received the message in error, and then delete it. Thank you.

***Disclaimer: Please note that RPPT listserv participation is not restricted to practicing attorneys and may include non-practicing attorneys, law students, professionals working in related fields, and others.***
_______________________________________________
WSBAPT mailing list
WSBAPT at lists.wsbarppt.com<mailto:WSBAPT at lists.wsbarppt.com>
https://urldefense.com/v3/__http://mailman.fsr.com/mailman/listinfo/wsbapt__;!!K-Hz7m0Vt54!j7B8_ZZg7pT5v5T3zIlXWuQX5bT0kEwotxLUwAin5UMLXq1xTZPvBU5OaB9jQDhbHJjtDT1kkuPP$<https://urldefense.com/v3/__http:/mailman.fsr.com/mailman/listinfo/wsbapt__;!!K-Hz7m0Vt54!j7B8_ZZg7pT5v5T3zIlXWuQX5bT0kEwotxLUwAin5UMLXq1xTZPvBU5OaB9jQDhbHJjtDT1kkuPP$>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/wsbapt/attachments/20240104/64b366f9/attachment.html>