In the state of Washington, married couples (and registered domestic partners) may change the way that property is transferred when one partner dies by using a community property agreement (CPA). This type of legal agreement can allow the surviving partner to avoid the Washington probate process, but it’s not always the right solution for every couple.
What a CPA does is allows all separate property of a spouse to convert immediately to community property upon death and then transfers it to the surviving partner without going through the probate process. This can greatly simplify estate planning, making the transfer to assets happen both faster and with less expense than probate.
How Community Property Agreements Work in Washington
The state of Washington is one of several states that governs the ownership of property in a marriage through the legal concept of community property. This means, when a couple decides to get married (or join in a domestic partnership), most property and assets acquired from that point onward belong to both partners in equal share. Any property owned before the marriage will remain as separate property, fully owned by whoever owned it before the marriage or partnership—unless those assets become “commingled” in such a way that they are indistinguishable from community property.
When a spouse dies, the share of community property that belonged to the deceased spouse will go to the surviving partner, unless he has a last will and testament that dictates otherwise. However, the will cannot give away the surviving partner’s 50 percent ownership interest of the community property. Without a will, separate property is divided equally between the surviving spouse and any children. If there are no children, the parents of the deceased will be owed a share. If the deceased partner had a last will and testament, he may leave instructions for the disposition of separate property to any heir or beneficiary he chooses.
In order to be valid, a CPA needs specific legal language arranging for the property transfer from one spouse to another upon death, must be agreed upon in writing by both partners, and must be signed before a notary public.
When You Should Consider Other Options
A CPA works for many couples, but it’s not always the right solution in every case. Sometimes, skipping probate can actually be a detriment to the estate. For instance, during the probate process, creditors have a four-month period to reply to an official “notice to creditors” and make a claim against the estate of the deceased; after this time period has passed, no more claims may be made. With a CPA and none of the protections afforded by probate, the time period for claims against the estate could be extended out as far as six years.
Another downside to the CPA is that it cannot be altered unless both spouses agree. It’s also important to include provisions to account for divorce in a CPA, or unintended consequences could result. A CPA is also typically an “all-or-nothing” document, in which you leave all or most of your assets to your spouse alone. Although provisions can be made to exclude particular assets from the agreement, generally it’s better to use a last will and testament in your estate plan if you want to leave some of your assets or property to someone else, such as an heir or other beneficiary. If you have both a CPA and a last will and testament, if there are any conflicts, the CPA will take precedence, so careful planning is always necessary to avoid any unwanted overlaps.
Get Legal Help Now
There are advantages and some disadvantages to using a CPA as a part of your estate plan, and only you and your partner can decide whether it meets the needs of your family. An experienced estate planning attorney can help you explore all your legal options and build a comprehensive plan that will ensure your loved ones are taken care of in the future.
Whether you’re ready to begin your estate plan now or have questions about your existing will, CPA, or other estate planning documents, the Law Offices of Molly B. Kenny is here to help you. To arrange a private consultation in our Bellevue office, call us by phone, or use our contact form to send an email today.