It’s said that a successful marriage or domestic partnership is based on compromise, where both parties are equal. Once that relationship ends, through death or divorce, that equality is legally represented through the Washington state community property law.
When someone dies, the best way to ensure that a spouse, children, parents, siblings, and all other people and entities (charities, schools, etc.) receive the inheritance they wish for them is to create an estate plan that legally formalizes those wishes.
Someone who dies and does not have at least a will is said to have died intestate, and their assets are distributed according to intestate succession laws. Those laws vary from state to state and are influenced by whether someone resided in a community property or common law state.
Community property vs. common law
There are two ways that states view assets acquired by a couple during a marriage: community property or common law.
In common law, the state views all assets and property purchased during a marriage or domestic partnership as belonging solely to the person who acquired it. For example, if a wife buys a car and puts her name on the title, she is the sole owner of the automobile. However, if she also put her spouse’s name on the title, then the car is jointly owned by both people. Common law property rules apply to any asset, including tangible ones like cars and real estate and intangible ones like trademarks and patents.
Community property is essentially the opposite of common law. In a community property state, nearly everything earned or purchased during a marriage or domestic partnership is subject to division between the parties in the event of divorce. Some states divide assets equally, while others allow the courts to determine a just and equitable division of the marital estate, which may or may not be equal. This is also true for any loans and other debts.
Someone can enter a marriage with personal property or savings and keep it separate from the community property. However, the assets must remain in one person’s name and be separated from joint accounts. If the assets are transferred to a joint account or used for joint purchases, they will likely become community property. Property designated as separate typically remains with the spouse who owns it in the event of divorce or death.
Is Washington a community property state?
Yes, Washington is one of only nine states with a community property law. As of 2023, the nine community property states in the U.S. are:
- New Mexico.
There are also three states where a couple can “opt-in” to a community property agreement. Those three states are:
- South Dakota.
The Washington state community property agreement declares that all assets and debts acquired by either spouse during the marriage are shared equally, regardless of which spouse earned or obtained them.
Some assets that fall under the community property Washington state law include:
- Income earned while married.
- Real estate.
- Personal property, such as cars, furniture, art, jewelry, etc.
- Savings accounts.
- Retirement accounts.
- Debts acquired while married.
What are the surviving spouse rights in Washington state?
The surviving spouse rights in Washington state depend on whether the couple created an estate plan. In Washington (and all community property states), spouses can create wills, trusts, and other legal documents to disperse their half of community property however they wish. When one spouse passes away, the surviving spouse retains half of the community property, and the remaining half is dispersed according to the deceased spouse’s wishes.
However, if a couple did not create an estate plan, at least a Last Will and Testament, their assets are distributed according to Washington state’s intestate succession laws.
The community property agreement Washington state law has established a clearly delineated inheritance hierarchy:
- Surviving spouse or state-registered domestic partner. The spouse or partner will receive the following share of the estate:
- Their portion of the community estate, and…
- One-half of the remaining estate if the deceased has direct descendants or legally adopted children.
- Three-quarters of the remaining estate if there are no children but the deceased has living parents or siblings.
- The entire estate if the above issues are not applicable.
- Direct descendants and legally adopted children of the deceased.
- Parent or parents.
- Grandparent or grandparents (if the deceased is survived by maternal and paternal grandparents, the estate is evenly split).
- Descendants of the grandparents, divided by groups and split according to representation.
- For example, the deceased has a surviving aunt descended from a maternal grandmother and three surviving nephews descended from a paternal grandmother.
- Half of the estate goes to the surviving aunt.
- Half of the estate is divided evenly between the three surviving nephews.
- If no relatives are found, the assets are escheated, meaning the state claims them.
It is important to note that when one spouse passes away, their ownership interest in the marital home automatically transfers to the surviving spouse if the property was acquired during the marriage. For example, a direct descendant cannot try to sell one-fourth of the couple’s home and evict the current occupant.
Is inheritance community property in Washington state?
There are three asset categories that, in general, are not considered community property in Washington state. They are:
- Assets purchased before the marriage.
- Gifts to only one spouse (this can get contentious during a divorce; always keep careful records regarding solo gifts).
However, to maintain the separate property status of an inheritance, it is essential to keep it apart from other community property and not use it for joint purposes. The easiest way to ensure that an inheritance remains isolated is to hold it in a bank account that is separate from other finances and maintain extraordinarily detailed and accurate records.
When separate property and community property assets are combined or used jointly, it is called commingling assets. Commingling typically results in the conversion of separate property into community property, which impacts who has a right to any property and inheritance.
What is a husband or what is a wife entitled to in a divorce in Washington state?
Washington is a “no-fault” divorce state, which means a couple can end a marriage by stating that no one is to blame or guilty of misconduct that led to the marriage’s conclusion. This method simplifies divorce proceedings by focusing on the dissolution of the marriage rather than assigning blame. The most common ground for a “no-fault” divorce is “irreconcilable differences.”
As an alternative to divorce, Washington State also allows people to legally separate. Legal separation lets couples separate their lives and finances without officially ending the marriage. Some couples choose this option for religious or financial reasons or to maintain certain benefits, like health insurance.
Since Washington is a community property state, most assets and debts acquired during the marriage are jointly owned by both spouses. In a divorce, community property is typically divided equally. However, the court may consider factors such as the length of the marriage, each spouse’s financial contributions, and their economic circumstances when determining the equitable distribution of assets and debts. The goal is to achieve a fair and just outcome for both spouses (which may not always be a 50/50 split).
If one or both spouses enter a marriage with previously owned assets, they continue to hold those assets separately throughout the marriage and leave with them in a divorce. The only issue is if those initially separate assets become commingled or used for joint purposes. In that case, the assets may be subject to division in a divorce. This can become a complex and contentious issue. It is always recommended to keep these types of assets in one person’s name or a separate account and carefully document how they are used.
If the divorcing couple has a prenuptial or postnuptial agreement, it does not matter if a state is common law or community property. Those agreements determine the division of assets.
- A prenuptial agreement is a contract signed before marriage that outlines the distribution of assets and debts in the event of divorce or death.
- A postnuptial agreement is a contract signed after marriage to address property division and inheritance matters in the event of divorce or death.
Prenuptial and postnuptial agreements help spouses clarify their intentions regarding separate property in a community property state. Washington State has regulations regarding these agreements that must be met before they are legally enforceable, including full financial disclosure and voluntary consent.
Now that you have the answer to, “Is WA a community property state?“ you might like to learn more about surviving spouse rights in Washington state and other estate planning options, such as “How to avoid probate court?”. Harbor Law Firm has the answers you need, and we make the estate planning process as simple and stress-free as possible.
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