[WSBARP] Effect of Decree of Separation on Intestate Succession

[Eric Nelsen]

Hi Dwight--I'll bite. I may not be right, but I have an argument from authority.

If CPA was executed first, and then parties filed for and obtained a Decree of Legal Separation that separated their property interests by Decree, that is evidence of mutual intent to repudiate the CPA, I would argue under Higgins v. Stafford, 123 Wn.2d 160, 866 P.2d 31 (1994).

I would argue that the whole CPA was repudiated thereby, not just one or another of the prongs of the contract, based on In re Brown's Estate, 29 Wn.2d 20, 185 P.2d 125 (1947) (CPA contract is not divisible; it stands or falls as a whole).

See also RCW 26.16.120, "... Such [CPA] shall not...be construed to curtail the powers of the superior court to set aside or cancel such agreement for fraud or under some other recognized head of equity jurisdiction, at the suit of either party..." and divorce/legal separation is, I think, a "recognized head of equity jurisdiction."

However, since the marriage still exists, non-vested spouse still inherits a portion of separate property under RCW 11.04.015(1)(b)-(d). That's not because of the CPA, though; that's just one of the critical distinctions between divorce and legal separation.

Sincerely,

Eric

Eric C. Nelsen
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From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Bickel, Dwight
Sent: Wednesday, May 03, 2017 3:18 PM
To: WSBA Real Property Listserv
Subject: [WSBARP] Effect of Decree of Separation on Intestate Succession

It is unsettling to discover that you may have been wrong about something for decades. Hopefully, one of you can respond confirming the correct answer.

Community property, clearly created by recorded CPA.
Then a Decree of Legal Separation.
The relevant real property is vested to one spouse as separate, with only a lien given to the other spouse for specific payment.
Vested spouse dies, intestate.

My research today leads me to conclude that the non-vested spouse is a surviving spouse entitled to inherit the property. That is not the answer I expected. The other heirs of vested spouse aren't going to like that. Can anyone confirm that is correct, or refer me to authority.

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