Community property, death benefits, transfer of community and separate property to surviving spouse under WA law
3 attorney answers
A deceased person can't will anything so a literal answer to your question as written is "No." However, that probably doesn't help you so I will take a stab at interpreting what you might mean. A married individual dies. Spouse of that individual is surprised to find, when the will is presented, that their darling sweetheart left left his / her half of the community property to a person or persons other than spouse.
Can someone do this? Yes.
Is there anything the surviving spouse can do about it? Depends. Wills can be contested for a variety or reasons. The author of the first response to this question is the editor / creator of a great website on wills and will contests. Specific link to contesting a will included. If the will fails then the probate will need to enter an earlier will and, if there is not one, the estate will fall into intestacy. Under the intestacy statutes a surviving spouse will receive (see RCW 11.04.015):
(1) Share of surviving spouse or state registered domestic partner. The surviving spouse or state registered domestic partner shall receive the following share:
(a) All of the decedent's share of the net community estate; and
(b) One-half of the net separate estate if the intestate is survived by issue; or
(c) Three-quarters of the net separate estate if there is no surviving issue, but the intestate is survived by one or more of his parents, or by one or more of the issue of one or more of his parents; or
(d) All of the net separate estate, if there is no surviving issue nor parent nor issue of parent.
a living spouse can will his or her property, including his or her share of the community property, to anybody he or she wishes. however, if there is a community property agreement or a pre-nup, this might invalidate that provision of the will
In general, a person having legal capacity may transfer his or her property by Will at death to whomever. If the testator is married, in general there is no requirement that he or she transfer his or her one-half interest in community property to the surviving spouse. The typical exception is if the couple has entered into an agreement such that the surviving spouse takes all the community property at the death of the first spouse to die --- the typical result, for example, of a Community Property Agreement. This is a primary purpose for a married testator to make a Will. In the absence of a Will, at the death of the first spouse to die, all the communiity property passes to the surviving spouse --- by intestate succession --- inheritance. To divert the deceased spouse's half of the community property away from the surviving spouse and to others, the deceased spouse typically needs to have made a Will accompllishing this result. Of course, regardless of what the deceased spouse has done, the surviving spouse both before and after the death of the first spouse to die continues to own his or her half of the community. The issue is "What happens to the deceased spouse's half of the community --- whether it passes to the surviving spouse or to others?" Again, as with the law, there are always exceptions, the primary one here being a Community Property Agreement.