Adapting the Uniform Probate Code to Washington Marital Property Law

Robert L. Fletcher, Adapting the Uniform Probate Code to Washington Marital Property Law, 7 Gonz. L. Rev. 261 (1972).


The Uniform Probate Code covers the substantive law of wills, intestacy and related subjects and provides an efficient system for winding up the affairs of a decedent. It is well-organized, integrated, and complete; without substantial change or addition it is suitable for adoption in common law property states. It has not been brought to that perfection for community property states, however, for in neither its substance nor its procedure does it adapt to the complexities of separate and community property. Nor does it reflect the philosophy underlying the community property form of marital property, which considers that each spouse contributes equally to the well-being of the family and therefore shares equally in the property accumulations. Rather, the UPC provisions for the surviving spouse (assumed to be female) are seen primarily as a matter of protection or, at most, as a measure of fairness.

Nonetheless, the UPC can be adapted to reflect the community property philosophy of the Washington marital property system. This adaptation can and should keep intact most of the substantive Washington law, particularly as it affects the amenability of property to the reach of creditors and the related phenomenon in Washington law that the whole of the community property is subject to the administrative process. On the other hand, in certain areas, notably in the elective share and allowance sections, the UPC offers a means for correcting some deficiencies and uncertainties in Washington law.

This article deals first with the basic pattern of intestate and testate devolution and then discusses separately the modifications of the basic pattern occasioned by the needs or claims of the family or of adverse claimants such as creditors. These modifications include a provision for the surviving spouse to claim an elective share in the separate property of the decedent, the specification of various priority allowances such as exempt property and a homestead for the surviving spouse and children, and, finally, a delineation of the accommodations required among all beneficial takers because of pretermitted heirs and others such as creditors who frustrate the basic pattern of devolution.

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