The Probate Path – Married Community Property

probate path for married or domestic partnership community property

Our previous probate path blog post discussed the sad tale of Sam Smith, who died with no kids, and the happy tale of Rolf, his nephew and sole heir who discovered that he had the proverbial “rich uncle.”

Three Basic Probate Situations

As noted in the December 6th blog, there are three basic probate situations:

  • The owner was single – not married or a domestic partner
  • The owner was married or a domestic partner and it was community property
  • The owner was married or a domestic partner, but it was separate property (not community property)

There are variations: did the deceased have a will? Is the estate being probated (with or without a will)?

Today we talk about another probate situation, this time involving community property.

A sudden passing with no will

Shelley and Norma are domestic partners, and live in a home that they bought together in 2009 (see the August 2011 blog post, “Domestic Partnership Law in Washington State” where community property laws apply to both a married couple and domestic partners). Shelley has two children, Albemarle and Adelaide, from a previous marriage. They also adopted a child together, Angelina.

Sadly, Shelley passed away from a sudden illness. She did not have a will. The question arises – who gets the house? Is it just Norma, or can Albemarle and Adelaide claim an interest, perhaps forcing a sale of the home in order to get their share? What about little Angelina?

This is a basic community property situation, and Norma inherits the house, free of any claims by Albemarle or Adelaide, and it becomes her separate property. When her time comes (assuming she doesn’t sell the house, get married or enter into a new domestic partnership before then), only Angelina would inherit from her.

“…the children don’t come into play when either parent dies – only when the surviving parent later dies.”

Now, if Norma had died first, the same rule would apply – that is, Shelley would get the house as her separate property. However, when she passes away, Albemarle, Adelaide and Angelina would all inherit the house. In any case, the children don’t come into play when either parent dies – only when the surviving parent later dies.

Determining who is in title

Probate path for married or domestic partner at death & community property

Click the image above to download a printable version of this chart

But we are getting ahead of ourselves. Right now, a Realtor® is listing the house for Norma, and the title company has to decide who is in title and who would need to sign a deed. If there isn’t a lot of money at stake a probate probably wouldn’t be necessary, so a “lack of probate” affidavit is the starting point.

Most community property situations are pretty straightforward, because when two parents own the home as community property it passes directly to the surviving spouse when one passes away, and their kids will end up with it eventually anyway. The chart to the right shows how the title company would proceed to identify who must sign the deed. As in Shelley’s case, with no probate for what is clearly community property, the Probate Path No. 1 is followed.

To view the probate path chart click here. (a PDF will open in a new window)

Complications may arise

However, complications can arise when there are children from a previous marriage, and it may not be so simple for the title company. For example, Albemarle and Adelaide could raise a fuss, and even though it is apparent that Norma inherits the house, the title company may want to get a deed from them. Why might they want to make a claim? Well, Shelley could have inherited the house, in which case, even though that happened in 2009, it would be her separate property, and Norma could be out of luck. Or, maybe Shelley paid the entire purchase price with inherited money, in which case her heirs could argue it was her separate property because separate funds were used to buy it. But let’s add another wrinkle – maybe Shelley contributed the down payment from separate funds, but Norma made the mortgage payments. She might claim an interest – perhaps a “marital” lien, saying that some of the equity value was acquired by her for the value of what she paid. Albemarle and Adelaide could be anything from the sole owners to part owners to having no interest at all.

Lack of probate affidavit

Hopefully, all the complications would be identifiable in the “lack of probate” affidavit. Of course, Norma could open a probate for Shelley (especially if there was a will), and no matter what Albemarle and Adelaide would claim, the probate court would deal with it. The title company would follow either Probate Path No. 3 or 4, and a deed from the personal representative in the probate would be sufficient.

To download a printable version of the probate path chart, click this link: probate path infographic

Questions or comments? Please share below!

Top 4 Domestic Partnership Questions

A domestic partnership is a legal relationship between two adults who are not married. The status confers many of the rights and benefits also available to married couples in many aspects of life but it is not marriage under Washington law. Originally only a few of these affected real property, but as of 2008 many elements of real property ownership applicable to married persons now also apply to domestic partnerships.

1. Who qualifies for domestic partnership?

How does domestic partnership affect real estate ownershipDomestic partnerships can apply to persons of the same sex, but also to those of the opposite sex where at least one of them is 62 years old or older. This is important to those who want some of the benefits of marriage but who do not want to be married. For instance, a domestic partnership will allow inheritance of a home as if the couple were married, but preserve the single status of those persons who do not want the relationship to affect, for example, pensions or Social Security benefits. For those couples it is important that the legal relationship not be equivalent to marriage.

“Domestic partnerships can apply to persons of the same sex, but also to those of the opposite sex where at least one of them is 62 years old or older.”

2. How do domestic partnerships effect real estate ownership?

Broadening the treatment of real property to apply to domestic partnerships means that now interest in real property is equivalent to both homestead and community property for a married couple. (Please see previous post on community property & homesteads in WA by clicking here.) And, of course, if either partner dies without a will, title to real property will be treated the same as for a married couple in similar circumstances. (Please see May 2011 post regarding probates.)

3. How can I have a domestic partnership legally recognized?

In order for the domestic partnership to be legally recognized in Washington State a declaration of domestic partnership must be completed and filed with the Office of the Secretary of State, Corporations Division. It can be terminated automatically if the partners marry each other as recognized in Washington (which would only apply to domestic partners of the opposite sex). It can also be terminated voluntarily by filing a notice and affidavit with the registry and meeting certain other criteria. The final way it can be dissolved is by a court process similar to marriage dissolution.

4. Will Washington State recognize a same-sex marriage registered in another state?

Limited reciprocity rules apply to domestic partnerships. A legal union formed in another state that is “substantially equivalent” to a Washington domestic partnership will be recognized here as such. However, a same-sex marriage that is legal in another state is not recognized in Washington as either a marriage or a domestic partnership.

Washington State Domestic Partnership Resources:

Domestic Partnerships – WA State
Frequently Asked Questions
Domestic Partnership Declaration.pdf

Questions or comments? Please respond by leaving a message in the comment box below!