[WSBARP] TODD and Domestic Partnership

Thu Oct 31 11:18:25 PDT 2019

John, you forced me to do some actual research because I got curious.

RCW 64.80.100(4)<https://app.leg.wa.gov/RCW/default.aspx?cite=64.80.100> only refers to TOD transfer of community property, right? So if the house is CP, then the decedent could transfer a one-half interest to a TOD beneficiary, leaving the surviving spouse with a one-half interest. But in Paul's scenario, the house is apparently separate property.

Re homestead, I honestly don't know the full implications of RCW 6.13.020<https://app.leg.wa.gov/RCW/default.aspx?cite=6.13&full=true#6.13.020> stating that a spouse or SRDP can have a homestead in the separate property of the other partner. I have run into this issue before but managed to avoid having to address it head-on. I couldn't imagine how one could have a homestead in property that one doesn't actually own, or even what the point would be in such an arrangement. But reading RCW 6.13.020 and RCW 6.13.060 together, it appears that if an SRDP couple is living in one partner's separate property home and that home is their homestead, it can't be conveyed without the non-owning SRDP joining in the deed.

So then I did do some research just now, and found Edgley v. Edgley, 31 Wn.App. 795, 644 P.2d 1208 (1982), which explains that even the mere possessory right of a spouse living in the other spouse's property would be sufficient to allow a homestead, specifically to prevent a forced sale--and by implication, I think the point is to prevent the non-owning spouse from being deprived of a place to live.

Though I admit, that interpretation appears to contradict the general authority under RCW 26.16.020<https://app.leg.wa.gov/RCW/default.aspx?cite=26.16&full=true#26.16.020> that preserves all separate property rights of management and conveyance of a domestic partner against any need to involve the other. I don't know how to reconcile RCW 6.13.020 and RCW 26.16.020, and I haven't seen any guidance in cases.

Sincerely,

Eric

Eric C. Nelsen

SAYRE LAW OFFICES, PLLC

1417 31st Ave South

Seattle WA  98144-3909

phone 206-625-0092

fax 206-625-9040

-----Original Message-----
From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of John McCrady
Sent: Thursday, October 31, 2019 10:40 AM
To: WSBA Real Property Listserv
Subject: Re: [WSBARP] TODD and Domestic Partnership

RCW 64.80.100 specifically contemplates the conveyance by one Domestic Partner.  I know of no authority regarding the effect of homestead rights, nor, for that matter, the right to an award in lieu of homestead.  I would be very interested to hear of any decisions I may have missed.

John McCrady

Counsel

Puget Sound Title Company

5350 Orchard Street West

University Place WA 98467

253-476-5721

j.mccrady at pstitle.com<mailto:j.mccrady at pstitle.com>

-----Original Message-----

From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Paul Neumiller

Sent: Wednesday, October 30, 2019 3:18 PM

To: wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>

Subject: [WSBARP] TODD and Domestic Partnership

Listmates;  this is a new issue for me and my local senior title officer is a bit stumped.  Dad (74 years old) was widowed in 2003 and there is a PR deed for the house to Dad as sole owner.  Dad enters into a registered domestic partnership in 2007 (both partners were over 64 so it appears Referendum 74 does not apply to them).  Support and all house expenses continued to be paid by Dad.  Dad has not transferred any interest in the house to domestic partner.  Dad now wants Daughter (and not domestic partner) to receive house upon Dad's death.  It would most likely be a non-taxable estate at Dad's death.  So, on the Transfer on Death Deed, how do I refer to Dad?  "Grantor, Dad, a registered domestic partner, as his sole and separate property"?  Assume that the domestic partner will not sign a quitclaim deed now and not at the time of Dad's death.  This is far outside of my expertise (not doing ANY family law.)  I will advise Dad to consult with a family law attorney regarding!

  whether domestic partner has acquired a community interest in the house.  Is it necessary to say "as his sole and separate property"?  Maybe the title guys can chime in with the proper language to refer to Dad.    Thanks for your input.

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