[WSBAPT] CPA v TODD

Thu Jan 4 12:58:20 PST 2024

I’m wondering what the language is in the QCD. If it includes the rather
standard “together with all after acquired title of the Grantor therein”
does that matter in this analysis?

Sincerely,

Tom

Thomas J. Westbrook

Attorney at Law

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*From:* wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com>
*On Behalf Of *Eric Nelsen
*Sent:* Thursday, January 04, 2024 12:11 PM
*To:* WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
*Subject:* Re: [WSBAPT] CPA v TODD

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

*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
www.mbaesq.com

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*From:* wsbapt-bounces at lists.wsbarppt.com <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>
*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> 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
www.mbaesq.com
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