Washington Estate Planning - Individual Interests in Joint Property
Community PropertyAll property owned by married persons in Washington can be categorized as individual separate property of the husband or wife or as community property. All property acquired during the marriage by a married person while domiciled in Washington is presumed community property. [RCW ?26.16.030]
Commingling separate and community property to the extent that it is impossible to ascertain each source results in a presumption of community property for the entire asset. This presumption can be rebutted in two ways. First, commingled separate property retains its character if it can be traced back with particularity. [Berol v. Berol]
Second, family expenses are presumed paid from community property. If, at the time of acquisition of a disputed item, one party shows that all of the community property was exhausted with family expenses, then remaining funds and items purchased by them are deemed separate property. [Pollack v. Pollack]
Quasi-Community PropertyQuasi-community property concerns the interest of a surviving spouse in the property of a deceased spouse brought into Washington from another state. The surviving spouse is entitled to one-half of all non-community property acquired by the deceased spouse while living out-of-state (except out-of-state property not controlled by Washington law), was owned by the spouse at time of death and would have been community property if acquired while the spouse lived in Washington. The surviving
spouse may even regain one-half of quasi-community property that was transferred by the deceased spouse to a third party if the transfer occurred within three years of death, if the transfer was made without the surviving spouse's consent and for less than adequate consideration, and if the transfer was incomplete, leaving the deceased spouse some control over the right in the property. [RCW ?26.16.220-.250]
Meretricious RelationshipsWashington's community property laws require a lawful marital relationship.
Washington courts also examine the division of property of unmarried cohabitants if
there is a meretricious relationship. A meretricious relationship is defined as a "stable,
marital-like relationship where both parties cohabit with knowledge that a lawful
marriage between them does not exist." [Connell v. Francisco] The key to meretricious relationships in Washington is the stable quality of the relationship, not a minimum length. Where such a relationship is asserted, the court will make a just and equitable division of the property, examining each case on its facts and considering each party's contribution to the property in question. Traditionally Washington did not apply this doctrine to same-sex partners. An appellate court reversed that trend to now allow this doctrine to apply to same-sex couples. [Gormley v. Robertson]
Joint TenancyA joint tenancy in property can be created between two or more co-tenants. The distinguishing feature of a joint tenancy is the right of survivorship. Conceptually, when one joint tenant dies, the survivor(s) retains an undivided right in the property no longer subject to the interests of the deceased co-tenant. The right of survivorship aspect of joint tenancy acts as a will substitute meaning that a joint tenant does not bequeath a joint tenancy interest in a will. Individuals who hold property as a joint tenant should also understand their property rights in a severance of joint tenancy.
In Washington, an owner can create a joint tenancy in a single deed even though unities of time and title are not satisfied. However, Washington requires a clear expression of intent to create a joint tenancy or a tenancy in common will be presumed. Washington does not recognize tenancy by the entirety. Joint tenancy requires the intention to create a right of survivorship. [RCW
Tenancy in Common (TIC)A TIC is a concurrent estate with no right of survivorship. Each tenant is entitled to possession of the entire property even if they acquire their interest at different times, by different instruments or have unequal interests. Each owner has a distinct, proportionate, undivided interest in the property. This
interest is freely alienable by inter vivos and testamentary transfer, is inheritable, and is subject to the claims of the tenant's creditors.
In Washington, multiple grantees of a property are presumed to take as tenants in
common. A tenancy in common is also created when a joint tenancy is severed or when
community property is not divided upon dissolution of a marriage.