[WSBAPT] Effect of QCD that established Family Home as Separate property when Decedent dies intestate

[msafren at jennylinglaw.com]

Hello Fellow Listservers and Practitioners,

 

I wanted to solicit your input and opinions on a scenario.  Husband and wife
purchase family home back in 1989 while married, but due  to wife’s poor
credit, she quit claimed her interest in the home at closing to ensure that
husband is only person on Deed of Trust and Loan as well as on title using
the WAC exemption to establish the property as separate property.   The
family home is their primary and only residence and wife has resided there
continuously since 1989.  In fact, husband passed away in 2020 and only wife
has been paying the mortgage since then. 

 

Husband has children from a previous marriage and husband and wife have
multiple children together, but all children have reached the age of
majority/ are adults.

 

Husband died without a will and so the right of the heirs at law to inherit
is governed by RCW 11.04.015(1) which states “(1) Share of surviving spouse
or state registered domestic partner. The surviving spouse or state
registered domestic partner shall receive the following share:

(a) All of the decedent's share of the net community estate; and

(b) One-half of the net separate estate if the intestate is survived by
issue”

 

It therefore appears that the surviving spouse/ wife is only entitled to ½
of the family home and  the children are entitled to ½ of the family home,
even though the property was purchased while married with what are
presumptively community assets.    

 

Questions:

Is anyone familiar with any case law that exempts real estate acquired
during the marriage, but then deemed separate property from RCW 11.04.015 or
alternatively that allows the court to treat real estate acquired during the
course of the marriage where one spouse conveyed their interest to the other
spouse as still community property? 

 

I was thinking that the surviving spouse is entitled to make a petition for
family support to try to claim the entirety of the family home under RCW
11.54.010 with the basic award covering the entire equity of the property
(property is not very valuable).  Does anyone have thoughts or input on
this?  Can a petition for family support from a surviving spouse dispossess
the interest of other beneficiaries such as adult children of the decedent? 

 

Thanks so much to all for your input and feedback.

 

Kind regards, 

Michael S. Safren, Esq. 
Attorney at Law 


 
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