Separate and Community Property Considerations for Personal and Estate Planning

What’s yours, what’s mine, and what’s ours? In Washington State, it depends. Property interests become blurred once two people enter into a committed intimate relationship (aka “CIR”) or get married. Our laws provide guidelines that determine what is separate property and what is community property. This post discusses separate and community property and answers FAQs regarding how changing relationships can alter the ownership and interest in property.

What is separate property?

Separate property includes property and/or interests owned before a CIR or marriage. However, separate property can be obtained after a marriage by gift or inheritance. In these cases, separate property is generally not subject to the contracts and debts of the other spouse.

What is community property?

As a general rule, community property is property acquired or earned by either party in a CIR or spouse in marriage. When property or interests are acquired in marriage, each immediately owns an undivided one-half community interest in all property acquired. A spouse can only devise or bequeath by Will their half of community property. Furthermore, both spouses must act together to purchase, sell, convey or encumber community real property.

What is Quasi-community property?

This type of property is acquired by a married couple in a state that does not have community property, but the property would be treated as community if it was acquired in Washington State. If the couple subsequently relocates to a community property state and either the couple divorces or one spouse dies, a court may treat the property like community property when determining the property interests of the divorcing or surviving spouse(s).

With community and separate property defined, consider these frequently asked questions:

How does marriage alter property rights?

• Marriage can effect property rights in many ways including the following:

–     Respect to the earnings and property acquired by spouses,

–     If a marriage is dissolved,

–     If a spouse dies without having executed estate planning documents.

What happens after a separation?

• The Court has jurisdiction over all of the property and makes a just and equitable distribution based on:

–     Nature and extent of the community property and separate property,

–     Duration of the marriage,

–     Economic circumstances of each spouse.

What happens when one spouse dies?

• If there is a Will, the personal representative of the estate confirms half of the community property to the surviving spouse.
• The other half is subject to disposition by the Will or other testamentary device.
• If the surviving spouse is not named in the Will they are entitled to a share as an omitted spouse.

What if there is no will?

• The community share of the decedent is distributed by intestate administration as provided in RCW 11.04. RCW 11.02.070 including a presumptive community share for the surviving spouse.

What is a family support award?

• Upon death, the surviving spouse and children of the decedent who are not also children of the surviving spouse may petition the court for an award. RCW 11.54.010.

Are community property interests only acquired if a couple is married?

• No. Community property interests can be the result of couples in a CIR.

Can community and/or separate property interests be changed?

• Community property agreements create the boundaries for what may be considered community property and/or separate property. Other examples of types of agreements that can characterize property as separate or community include pre-nuptial and post-nuptial agreements or property status agreements.

While this post offers useful information that is applicable across a variety of scenarios, it is not intended to be used as legal advice. Please seek legal counsel to answer questions specific to your unique circumstances.