A community property agreement, or CPA, can be a powerful tool for your estate plan. It has some real advantages for certain situations that can be used to avoid probate when one partner in a marriage dies. However, it may not be the best solution for every marriage, as there are many limitations that a CPA has that other estate planning documents do not.
Here’s what you need to know about having a community property agreement as part of your own estate plan, including what a CPA does, what limitations it has, and whether you need an attorney to help you.
Creating a Community Property Agreement
Washington is a community property state, which means that when you enter into a marriage, most of the assets or property that you each acquire afterward belong in equal part to each partner (although there are exceptions, such as gifts or inheritances). However, property owned by each partner before the marriage stays separate, unless it is later commingled with community property.
A CPA is a form of legal agreement between you and your spouse that converts all property of both partners into community property and then transfers ownership interest of all that community property to the surviving spouse without the need to go through probate. This can save quite a bit of time and some legal expense, too, so for less complex situations, it can be a relatively simple and painless document.
In the state of Washington, you do not need an attorney to create a CPA. It’s a document that you can create on your own, if it meets certain criteria. At a minimum, a CPA typically should state that:
- Any separate property owned by either partner must become community property
- Any future property acquired by either partner, including gifts or inheritances, must become community property
- Upon death of a partner, all community property is vested in the surviving partner
It’s also important to note that a CPA must not only be signed by both partners but also notarized to be considered valid. If this requirement is not met, the CPA likely will not hold up in court, and the assets of the deceased partner may end up going through probate despite his last wishes.
When a CPA Is Not a Good Choice
If you want to create a CPA, it’s a good idea to think about why you’re creating it and what your estate needs really are. There are many instances where there is a better solution, such as a will. Your CPA cannot:
- Make gifts to any other heirs, beneficiaries, or favored charities. All of your property must go to your surviving spouse.
- Name a personal representative to manage your estate.
- Cite guardians for your minor children.
- Make arrangements for your property if you and your spouse should both die at the same time.
Changing or dissolving a CPA is a little more difficult than with a will, too. Unlike a will, any changes to a CPA must be agreed upon by both partners, and a new document must be drafted, signed, and notarized. Revoking a CPA also requires the signature of both spouses, whereas a will can be revoked by simply destroying the document.
Get Legal Help With Your Estate Plan
Although you’re not required by law to have an attorney help you with your community property agreement, the potential complexities and pitfalls of a CPA mean that having a professional review yours is never a bad idea. An attorney can make sure that your CPA is legally valid, does what you need it to do, and there is no conflict with any other part of your estate plan.
If you’re not sure whether a community property agreement is right for your marriage, the Law Offices of Molly B. Kenny is here to help you ensure that your family and loved ones will be taken care of when you’re gone. To get the help that you need, please call us by phone or send an email using our contact form and arrange a private consultation to discuss your estate planning needs in our Bellevue office.