The Statutory Community Property Agreement as a Will Subsitute on the Death of the Second Spouse

The statutory community property agreement is a unique will substitute provided for by RCW 26.16.120. This statute allows a husband and wife to contract during their joint lifetimes for the vesting at death of their community property in the survivor without the necessity of an administration by the court. It applies only to agreements between husbands and wives to take effect “upon the death of either, and only to community property. However, most husbands and wives also contract as to the current character of their property and as to the character of property to be acquired in the future.8 Because such an agreement contains terms for characterization and disposition of present, future, and at death property, it has been referred to as a “three-pronged” community property agreement.

Only the at-death element is directly authorized by statute, and therefore, presumably only that element must meet the formal requirements for execution that are set forth in the statute. The other elements of the three-pronged agreement are simply an outgrowth of the general power of husbands and wives to agree as to the status of their property and to transfer property between themselves.

While the statutory agreement has been used primarily for transfers between spouses upon the death of the first to die, there has been an increased utilization of the agreement as a means of transferring property to third parties without court-supervised ad- ministration upon the death of the second to die. Whether the transfer to third parties is legally possible and the analytical problems stich a transfer presents will be the focus of this Article.

. . .

Read More

William Oltman & Mark Reutlinger, The Statutory Community Property Agreement as a Will Subsitute on the Death of the Second Spouse, 19 Gonz. L. Rev. 511 (1983).

Comments are closed.