WA-Probate > Washington-Guardianship > Managing the Guardianship/Guardian of the Estate: Court Reporting Requirements > Spouse's Marital Interest

Determining a Spouse's Marital Interest

1. What Is Community or Quasi-community Property?

2. What Is the Effect of Determining an Asset to be Community or Quasi-community Property?

3. An Asset's Character May Not Be What It Says on Its Title

4. Commingling of Assets

A.   What Is Community or Quasi-community Property?     ñ

Washington, like California and seven other states, is a community property state.  Consequently, if the Incapacitated Person is married upon the appointment of a Guardian, it is likely that some and perhaps all of Incapacitated Person's property is either:

• Community property: Property acquired

  • By either spouse or both spouses,

  • During their marriage and while residing in Washington, and

  • With funds that were neither:

    • Brought to the marriage, or

    • Obtained during the marriage by gift or inheritance.  RCW 26.16.030

  Or
   

• Quasi-community property: Property acquired

  • By either spouse or both spouses,

  • During the marriage while residing in a separate property state, and

  • That would have been community property had they acquired it while residing in a community property state.  RCW 26.16.220

Example:  John and Martha are married to each other and live in New York, a separate property state.  John celebrates the announcement of his promotion and job transfer to Washington by using a portion of his earnings to buy a new family car.  John and Martha move to Washington, become enraptured by its native beauty, and soon use a substantial portion of their marital savings as a down payment on a new home close to John's new work.  In reverse order:

• The home is John and Martha's community property, as it was purchased while residing in Washington and with funds saved during their marriage.
   

• The car is John and Martha's quasi-community property, as although it was purchased while residing in a separate property state, it was purchased with John's earnings during the marriage and, as a consequence, would have been their community property had they then been living in Washington.

B.   What Is the Effect of Determining an Asset to be Community or Quasi-community Property?     ñ

All of the property of a Incapacitated Person married upon the appointment of a Guardian will need to be characterized as either community, quasi-community, separate, or some combination among them.  Why?

• Because the Incapacitated Person's spouse has a one-half ownership interest in all of their:
   

  • Community property.  RCW 26.16.030
    
    And
     

  • Quasi-community property.  RCW 26.16.230
     

  • But NO interest in Decedent's separate property.
     

• Because the Incapacitated Person owns only a one-half interest in any community or quasi-community asset, only one-half of the value of each such asset will be inventoried on the Guardianship Inventory.

Consequently, the issue of characterization of each of the Incapacitated Person's assets can potentially become one of, in the words of the notorious bank robber Willie Sutton, "Where the money is" --- especially in the eyes of the Incapacitated Person's spouse.

C.   An Asset's Character May Not Be What It Says on Its Title     ñ

There is more to this characterization than meets the eye, specifically, how any asset is expressly titled.  Under Washington law, ALL property acquired by either spouse or both spouses during their marriage and while residing in Washington is presumed to be community property --- regardless of how the property may be titled.  Therefore, unless it can be shown that the property was truly separate property, it will presumed to be, and treated for probate purposes as, community property.  Citations: A long line of cases, extending from Yesler v. Hochstettler, 4 Wash. 349 (1892) to Marriage of Chumbley, 150 Wn.2d 1 (2003) [Use of spouse's separate property to exercise Immunex stock options received during employment while married].

Under Washington law, separate property is property that is either:

1. Acquired before, brought to, AND maintained separately during the marriage;
    

2. Acquired during the marriage by gift or inheritance, intended by its donor to be the separate property of one spouse, AND maintained separately during the marriage after its acquisition; or
    

3. Converted to separate property by a valid agreement between the spouses (eg, by a Property Status Agreement or Postnuptial Agreement) AND maintained separately during the marriage after its conversion.

RCW 26.16.010, 26.16.020, and 26.16.120

To rebut the presumption that all property acquired during a marriage is community property, clear and convincing evidence must be shown that the asset in question fits into one of the three separate property categories shown above.  Dean v. Lehman, 143 Wn.2d 12 (2001) [Wife of Department of Corrections inmate challenged validity of Washington statute mandating deduction of 35% of all funds received by prison inmates].

Practically speaking, this means that in order to determine that any asset of an Incapacitated Person having a spouse upon appointment of a Guardian is truly the Incapacitated Person's separate property, you will need to obtain such information as:

• The date of the Incapacitated Person's marriage,

• The date of acquisition of the asset in question,

• The state of residence of the spouses at its acquisition,

• Whether the asset was obtained by purchase or by gift or inheritance,

• If obtained by purchase, the source and character of funds used to purchase it,

• If obtained by gift or inheritance, the intention of its donor as to its character in the Incapacitated Person's hands,

• The means used to ensure that it was maintained as separate property and not commingled,

• The existence and terms of any property agreement between the spouses, etc.

D.  Separate Property Can Lose Its Separate Character in Time: Commingling of Assets     ñ

To complicate matters further, separate property can lose its separate character over time and become community property through a process known as "commingling."  Separate property remains separate property though changes and transitions (eg, sale of separate property and subsequent use of the sales proceeds to purchase other separate property) so long as its separate character remains traceable and identifiable.  If, however, the ability to distinguish or apportion it from community property is lost, the entire amount of what began as a separate asset becomes community property.  Marriage of Pearson-Maines, 70 Wn. App. 860 (1993).  The burden is on the party claiming separate property to clearly and convincingly trace the purported separate asset to a separate property source.  Marriage of Skarbek, 100 Wn. App. 444 (2000).  This process is known as "tracing," and it in particular and this characterization in general can easily become contentious.  If you have any questions at all about this characterization or tracing, WASHINGTON PROBATE urges you to obtain legal counsel.

WASHINGTON PROBATE
Forms & Instructions

Guardianship Site Map

©