[WSBARP] TODD and Domestic Partnership

Thu Oct 31 13:42:24 PDT 2019

Josh--Believe it or not, I've thought about that due to an earlier probate matter. I'd defer to John McCrady, but without having researched it much, I think a tenant could in theory have a homestead in the tenant's leasehold interest, assuming the lease survives tenant's death. Of course, the homestead rights would be inferior to landlord's right to terminate for a tenant breach--failure to pay rent or whatever.

If the tenant doesn't even have a lengthy lease and is month-to-month, the landlord would be able to simply terminate regardless of whether or not the tenant has a homestead in the "right to occupy for the rest of the month."

I think as a practical matter, a tenant's leasehold is almost never worth protecting as a homestead. And protecting that leasehold from creditors won't make much sense, because no creditor is likely to execute on a debtor's leasehold--why seize an asset that requires payment of monthly rent to maintain and is going to terminate at some point anyway?

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

From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Josh Grant
Sent: Thursday, October 31, 2019 1:10 PM
To: 'WSBA Real Property Listserv'
Subject: Re: [WSBARP] TODD and Domestic Partnership

Interesting.
This language: Thus, the right to a homestead does not depend upon title, but upon occupancy and use Could lead to an argument that a tenant could file a homestead !??

Joshua F. Grant
[advocates]
P. O. Box 619
Wilbur, WA 99185
509 647 5578

From: Eric Nelsen<mailto:Eric at sayrelawoffices.com>
Sent: Thursday, October 31, 2019 11:21 AM
To: 'WSBA Real Property Listserv'<mailto:wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] TODD and Domestic Partnership

Ach--I hit send too early!

The extended quote from Edgley at 797-798:

Thus, the right to a homestead does not depend upon title, but upon occupancy and use. See also, 73 A.L.R. 116, 128 (1931); 74 A.L.R.2d 1355 (1960). The statute is designed to protect the home; there is no provision for apportioning interests. To this end, the statute has been interpreted not to deprive a declarant of the right to a homestead where another party also has an interest in the property. Downey v. Wilber, 117 Wash. 660, 202 P. 256 (1921); Desmond v. Shotwell, 142 Wash. 187, 252 P. 692 (1927); Swanson v. Anderson, 180 Wash. 284, 38 P.2d 1064 (1934). It was noted in Downey, supra 117 Wash. at 661, 202 P. 256:

The statute, it is true, defines a homestead as the "dwelling house in which the claimant resides and the land upon which the same is situated," and in defining the property from which a homestead may be selected uses the terms "his property" and "her property" in referring to the property of claimant, yet it does not necessarily follow that the interest of the claimant in the property must be title in fee. Such a construction, we think, would be contrary to the purpose and spirit of the statute. Its purpose is not to give or confirm title in the claimant, but is to prevent a forced sale of the home; in other words, to secure the claimant and his family in the possession of his home. Seemingly, therefore, if a claimant has a sufficient interest in real property to entitle him to maintain a home thereon, he has such an interest as will entitle him to protection under the homestead statute.

Possession is sufficient to exempt the property from execution against all except the other party who also possesses an interest in the property. Swanson v. Anderson, 180 Wash. 284, 38 P.2d 1064 (1934). See also 128 A.L.R. 1431 (1940).

Based on that, I can see an argument that RCW 6.13.060 means that, if your homestead with your spouse is in your separate property house, you can't convey it away without the non-owning spouse joining the deed.

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

From: Eric Nelsen
Sent: Thursday, October 31, 2019 11:18 AM
To: WSBA Real Property Listserv
Subject: RE: TODD and Domestic Partnership

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> [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.

***Disclaimer: Please note that RPPT listserv participation is not restricted to practicing attorneys and may include non-practicing attorneys, law students, professionals working in related fields, and others.***

_______________________________________________

WSBARP mailing list

WSBARP at lists.wsbarppt.com<mailto:WSBARP at lists.wsbarppt.com>

http://mailman.fsr.com/mailman/listinfo/wsbarp

________________________________
***Disclaimer: Please note that RPPT listserv participation is not restricted to practicing attorneys and may include non-practicing attorneys, law students, professionals working in related fields, and others.***

_______________________________________________
WSBARP mailing list
WSBARP at lists.wsbarppt.com<mailto:WSBARP at lists.wsbarppt.com>
http://mailman.fsr.com/mailman/listinfo/wsbarp
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/wsbarp/attachments/20191031/6f52cccb/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/png
Size: 7674 bytes
Desc: image001.png
URL: <http://mailman.fsr.com/pipermail/wsbarp/attachments/20191031/6f52cccb/image001.png>