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

[Eric Nelsen]

Three thoughts:


  1.  Don't give up on characterization of the house as community property. Under Borghi and Watanabe, the name on title is not determinative, and when the quitclaim deed to remove a spouse from title was done for purposes of obtaining financing, it's not evidence of an intent to actually change the property from community to separate. I think on these facts, the surviving spouse can reasonably take the position that the house in fact was community property despite the deed.
  2.  The family support petition is a good backup plan, but if a probate of the husband's estate was done, it might be too late. If there was a probate started within 12 months of date of death, then the family support petition had to be filed within 18 months of date of death; but if there was no probate, then it can be filed up to 6 years after date of death. RCW 11.54.010<https://app.leg.wa.gov/RCW/default.aspx?cite=11.54&full=true#11.54.010>. Note also that the applicable laws are changing as of August 1, 2024. See RCW 11.54.015<https://app.leg.wa.gov/RCW/default.aspx?cite=11.54&full=true#11.54.015>. And yes, a family support petition can effectively disinherit children. But a lot of that is discretionary with the court, so the family support option is best as a backup plan if you can't just establish that the house is community property.
  3.  I'm wondering why this is coming up now, five years after the husband died. Is she planning to sell? Are some of the kids asserting an interest? Either way, it might be necessary to commence a probate of the husband's estate (assuming one was not done previously). If a probate was already done, then call me to discuss; there might still be options.

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 msafren at jennylinglaw.com
Sent: Monday, June 2, 2025 10:09 AM
To: 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Effect of QCD that established Family Home as Separate property when Decedent dies intestate

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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