[WSBARP] Married Couple Deeding House to Wife to create separate property

Wed Sep 29 11:47:13 PDT 2021

I have not seen any authority for a finding of procedural unfairness (which is what you are talking about) with a present gift between spouses, only for an agreement that characterizes property that is acquired in the future.  The deed has two practical purposes:  (1) It vests control in the wife (in this case) of the property during the marriage, and (2) it can act as clear and convincing evidence of a gift if the parties divorce later.  See Estate of Borghi, 167 Wn.2d 480 (2009).

Technically, during the marriage, each party has a 50% undivided interest in community property.  So a deed, H & W to W, conveys the entire community interest because both spouses must consent to the change in character.  However, since deeds are construed based on intent, a deed H to W would likely have the same effect.

I have not had any trouble with a deed, H & W to W in her separate estate for love and affection, requiring excise tax.

                Steve

From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Kary Krismer
Sent: Wednesday, September 29, 2021 10:35 AM
To: wsbarp at lists.wsbarppt.com
Subject: Re: [WSBARP] Married Couple Deeding House to Wife to create separate property

This is not the issue you're focusing on, but I've always wondered how such deeds could be effective, except perhaps as against a future BFP.  If spouses need independent counsel for an effective separate property agreement, why not for a deed too?  Particularly in a non-purchase transaction if the house is the only significant asset owned by the couple.
Kary L. Krismer

206 723-2148
On 9/29/2021 10:24 AM, John J. Sullivan wrote:
My only question is what about the wife’s interest? After the H deeds his to her as SP, is her share also SP or still CP? There’s no reason why a property titled solely in one spouse cannot be CP.

John J. Sullivan
Sent from my iPhone

On Sep 29, 2021, at 9:56 AM, Craig Blackmon <craig at lawofficeofcraigblackmon.com><mailto:craig at lawofficeofcraigblackmon.com> wrote:

That is how I do it Jeff, from H to W with an after acquired title provision. This leaves W as the sole owner and thus free of any community interest. Hopefully that is right....

CB
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On Wed, Sep 29, 2021 at 9:53 AM <Jeff at bellanddavispllc.com<mailto:Jeff at bellanddavispllc.com>> wrote:
Listmates:

H & W hold title to their home as husband and wife.  They now want to make the house the wife’s separate property.  My understanding is the QCD would be from H & W to W to create separate property.  However, in looking at WAC 458-61A-203 it talks about transfers from one spouse to the other that establish separate property.  I know this is a real estate excise tax exemption WAC but it raises the question do I just need the H to quit claim his interest to W to create separate property?

Your thoughts.

Jeff Davis

W. Jeff Davis
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