No Will? Part V: What Happens to Your Spouse?

By June 7, 2016 No Comments

Tom Hall on FlickrThis blog series explores the problems and complexities that may occur when someone dies without a Will. Prior posts discussed the process for appointing an estate Administrator, the authority that an Administrator may or may not have, whether the Administrator may be required by the court to furnish bond, and an overview of intestate succession. In this post, I am digging into the details of intestate succession in terms of the distribution to a surviving spouse or registered domestic partner.

Distribution to Surviving Spouse or Registered Domestic Partner

My May blog post set forth the Washington statute on intestate succession, which is RCW 11.04.015. As relates to a surviving spouse or registered domestic partner, the statute states:

(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 or her parents, or by one or more of the issue of one or more of his or her parents; or

(d) All of the net separate estate, if there is no surviving issue nor parent nor issue of parent.

People often assume that if they don’t have a Will everything will be fine, and all of their assets will easily be transferred to their surviving spouse since Washington is a community property state. But, is it really that simple?  Let’s say Fred and Jane have been married for three years. It’s a second marriage for both of them, and they both have children from prior marriages.  They do not have a marital agreement in place clarifying what is considered to be community versus separate property. Six months ago, Jane received a $100,000 inheritance from her deceased mother, which she deposited into the couple’s joint checking account. Then, tragically, Jane unexpectedly died in a car accident. She had no Will.

RCW 11.04.015(a) requires that the surviving spouse (in this case, Fred), will receive all of the decedent’s (Jane’s) share of the net community estate. In addition, Fred will receive one-half of Jane’s separate property, with Jane’s children from her prior marriage receiving the other half. But, what exactly is the net community estate, as opposed to the assets that should be counted as Jane’s separate property? Fred and Jane have not been married for an extended period of time, and probably haven’t developed many community assets. All assets that Jane brought into the marriage should, as a general rule, be considered Jane’s separate property. What about Jane’s inheritance from her mother? That is Jane’s separate property as well.  But the inheritance has been co-mingled with community property in the couple’s joint checking account, and the balance of that account when Jane died was $75,000. So, exactly how much money does Fred really receive from Jane’s estate?

To make matters more complex, Jane’s children from her prior marriage retained an attorney and filed claims in her probate proceeding about various assets that they believe should be considered separate property rather than community property.  Fred also retained an attorney, to protect his interests and make contrary claims that various assets should be considered community property.

Does this sound easy, clean and straightforward? Hardly. And this type of expensive mess occurs with some frequency, sometimes resulting in distributions completely contrary to what the deceased spouse would have wanted. The solution? Retain counsel, and have your Will prepared. We’d be happy to help.

Read the next post in the series here.

Photo credit: Tom Hall on Flickr


This post is for informational purposes and does not contain or convey legal advice. The information herein should not be used or relied upon in regard to any particular facts or circumstances without first consulting with an attorney.

(206) 784-5305