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Community Property Defined

Washington is one of nine community property states. With certain limited exceptions, property acquired by a husband and wife during a marriage is presumed to be community property. Exceptions include property acquired by gift, inheritance, and income from separate property. If you do not have a will, your community property will be distributed by law to your spouse. If you want to leave part of your estate to someone other than your spouse, you may do so by will or trust. If you are interested in the legal underpinnings of Community Property in Washington, the 1955 article by UW Law Professor Harry Cross "The Community Property Law in Washington" is an excellent start. For a more recent article, comparing Washington and Texas Community Property in the context of same sex relationships, see Not So Common (Law) Marriage: Notes from a Blue State, by UW Law Professor Thomas R Andrews.

Note that Community Property is only available to a married couple. However, there is a large body of law regarding Committed Intimate Relationships (previously meretricious or meretricious relationships) and how community like property is divided upon the breakup or death of the partners. For a recent case see Olver v. Fowler,131 Wn. App. 135, (Division One. January 9, 2006.)

Community Property Agreement

If you are legally married, you and your spouse may declare, in a written document, that upon your death, all your property is community property (even though the law would designate it as your separate property without this agreement), and that the surviving spouse receives all of the community property. This is a common method of avoiding probate for the estate of the first spouse to die.

Community Property Agreements are unique to Washington, and will not affect property, even community property, held in other states.

Community Property Agreements appear deceivingly simple; they are not. Community Property Agreements, especially those that are “three prong” agreements transferring not only property at death, but also present and future acquired property, can have very expensive unintended consequences.  No spouse can exclude the surviving spouse of their 50% interest in the estate.  Only with a Community Property Agreement can a spouse give 100% of their estate to anyone.  By default, the surviving spouse gets 50% of the estate regardless of where it exists.  The only exception to the 50% rule is “separate property.”  Separate property of a spouse can be directed 100% to anyone they choose, if they do it in a Will or Trust.  If no Will or Trust, the separate property has to prove it was separate from the surviving spouse and it remained separate from the surviving spouse.  By default all property is community property if acquired during the marriage.  All other property, if proven can be separate property.  See an attorney for any questions on the survivorship or community property.  It can be tricky.  The Community Property caselaw is established and the court’s have a strong view towards establishing and maintaining community property unless clearly proven otherwise.

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