The Effect of the deElche Doctrine on Community Property in Washington

Three years ago, in a landmark case which three justices warned “could eventually eviscerate the concept of community property” in Washington, the state’s supreme court ruled that a separate tort judgment against a married tortfeasor could be satisfied out of his half of the community personal property. Previously, property held by the community had been entirely exempt from tort liabilities “not incurred for the benefit of the community.” The dissent in deElche v. Jacobsen, contending that “such a massive change” should be made by the legislature, if at all, posed important questions left unanswered by the majority, including the community’s liability for contractual debts. Other commentators, while generally favoring the deElche result as vindicating the interests of a tort victim, recognized other potential problems. Would community real property, as well as personal property, eventually be subject to execution? How would the equitable lien, imposed by deElche’s majority upon the remainder of the community property to protect the innocent spouse’s right of reimbursement, be enforced? Encompassing all these questions was Justice Horowitz’s concern that community property might become “merely another form of common law co- tenancy, partitionable, at will or involuntarily, with no regard for the marital relationship itself.”

However, an examination of community property systems in other community property states shows that Washington is still more protective of the community in the area of separate tort liabilities than four out of the five states whose law is clear on the issue. Furthermore, the deElche holding has not again been used to subject community property to a separate tort judgment and the court has shown some intent to narrowly construe it.

But while deElche does not appear to portend ill-health for Washington’s community property system, there is a pressing need for the state’s legislature to fill gaps in the case law to eliminate uncertainties and make the deElche doctrine workable. In most other community property states, statutes spell out the perimeters and requirements for community liability.

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M. Katherine Kennedy, The Effect of the deElche Doctrine on Community Property in Washington, 19 Gonz. L. Rev. 545 (1983).

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