Community Property and Real Estate in Washington

The Revised Code of Washington law allows for three primary forms of co-ownership for real property: joint tenancy, tenancy in common, and community property.

Joint tenancy with the right of survivorship is authorized at RCW 64.28.010. Joint tenancy permits property to pass to the survivor without the cost or delay of probate proceedings, and must be explicitly specified in the deed. The joint tenants own undivided shares of the whole property. Property held in joint tenancy may not be passed to an individual owner’s heirs by a will.

As explained at RCW 64.28.020, tenancy in common is the default vesting option for two or more people who control individual shares of the property. Each owner may convey his/her share without consent of the others, and may also include it in a will.

Community property is where more complicated issues begin to arise. It is a form of ownership permitted exclusively to married couples or to those in registered domestic partnerships. It is defined at RCW 26.16.030, as property “acquired after marriage or after registration of a state registered domestic partnership by either domestic partner or either husband or wife or both.”

In general, income and assets gained by either partner during the marriage are automatically classified as community property, with each spouse owning one half of the asset, regardless of whether both names are on the title. Some couples choose to record a community property agreement, which clarifies their particular terms. Further, 64.28.020(2) states that co-owned real estate interests “held in the names of both spouses or both domestic partners, whether or not in conjunction with others, are presumed to be their community property.”

What happens when one of the community property real estate owners dies? In some states, the living owner automatically gains the deceased person’s property under the right of survivorship. Washington, however, does not extend survivorship to community property. Instead, according to 26.16.030(1), individual owners may include all or part of their shares in a will.

The surviving owner may also claim property rights under 26.16.100, by filing and recording a document outlining his/her interest in the property. When accepted by the auditor’s office for the county where the real estate is located, this can protect the survivor’s rights and possibly prevent a sale or other transfer.

Overall, managing and perfecting the title to Washington community property real estate after a death demands a sophisticated understanding of the law. Therefore, it makes sense for the surviving spouse or partner to contact an attorney for assistance with this potentially complicated matter.

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