[WSBAPT] Community Property?

[Eric Nelsen]

I think it's potentially fact-intensive to determine characterization, and then as a second matter, I don't know if there is case law that defines how to determine a surviving spouse's share in this scenario where a potential committed intimate relationship was followed by marriage.

First: If they were cohabiting at the time the property was purchased, or bought it and moved into it together, then there is an argument that they were in a committed intimate relationship a/k/a equity relationship for some period of time prior to their legal marriage, and the house is therefore potentially "community-like" property. If so, then their separate interests in the property would be initially influenced by how much separate money/credit each of them contributed to purchase the property before their marriage; but then their marital community would also have an interest depending on whether they used community funds to pay the mortgage/taxes/maintenance/insurance. This could result in something odd like 35% sp of husband / 40% sp of wife / 25% community.

If there is no good evidence on source of funds used to purchase the property, but the CIR is determined to exist, then the court would presume it's owned 50-50 by them. But if there's traceable contribution by the later marital community, it might still be something like 40% husband/40% wife/20% community.


Under ordinary CIR rules, if he had died while they were unmarried, his separate interest in the property would be subject to equitable division between his heirs and his CIR partner (now wife), while the wife would retain her pre-marriage separate property interest, and also inherit the entire community interest. The equitable division is not influenced by inheritance rules; it's a "fair and equitable" determination by the court.



However, in this case the CIR partners later married and husband died while they were married. So far as I know, there isn't a case that addresses this circumstance. The three outcomes I could see are:



  1.  The "community-like" CIR property, because the CIR was later formalized by marriage, will be treated as actual community property, and wife therefore inherits it all. This would be contrary to normal rules for characterization of property though, in that what was really separate-ish property before the marriage is "converted" to community property simply by the act of getting married.
  2.  The "community-like" CIR property is treated as separate property of the parties. But this means that the CIR "community-like" rules have to be thrown out, and the surviving spouse simply inherits a share of decedent's separate property.
  3.  The "community-like" CIR propety remains community-like, and is subject to equitable division between husband's kids and surviving spouse. But this means the surviving spouse's inheritance rights are thrown out, and she instead receives (non-inheritance) a share of his separate property interest.

I honestly don't know how the courts would deal with this situation.

As an aside, don't be fooled by how the names are shown on the deeds. They just don't matter when it comes to determining character as separate, community, or community-like. See Borghi, 167 Wn. 2d 480, 219 P.3d 932 (2009), and Watanabe, 506 P.3d 630 (2022).

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 Amy Goertz
Sent: Monday, July 29, 2024 12:15 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Community Property?

I have an interesting scenario.

Two unmarried parties bought property via Statutory Warranty Deed that conveys title to both parties as "husband and wife."

Parties later married.

Parties recorded a Deed of Trust post-marriage, which notes the parties as "a married couple."

None of the documents say "community property" or "separate property."

Husband died and left no Will. Wife did not open a probate or otherwise deal with the titling of the property.

Wife has now passed. She also left no Will.

Husband's children argue house is owned by the parties 50/50, each as their separate property, since they acquired title prior to marriage. They want to split estate with wife's children.

If that's true, my thought is wife owned her 50% and inherited 50% of husband's share, so she now owns 75%.

Or can wife's heirs argue that it is Community Property based on the language of all documents indicating they are husband and wife. Any thoughts on what is share to wife's heirs?

Amy

Amy J. Goertz, J.D.
Goertz & Lambrecht PLLC
amyjgoertz at icloud.com<mailto:amyjgoertz at icloud.com>

1.888.926.2607 phone
1.877.684.1627 fax
Address for correspondence:
2829 S. Grand Blvd., Suite 303
Spokane, WA 99203

Additional office locations:
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Goertz & Lambrecht PLLC
www.goertzlambrecht.com<http://www.goertzlambrecht.com/>







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