§ 3.05 EFFECT OF OUT-OF-STATE FACTORS

• Jurisdiction: Washington

§ 3.05 EFFECT OF OUT-OF-STATE FACTORS

What is the character of an asset acquired in Washington by a married person domiciled in a "common-law" state, i.e., a state without community property laws? Is the asset separate or community property? And what is the character of an asset acquired in a common-law state by a married person domiciled in Washington? These questions are more fully addressed in Chapter 8, but some basics will be noted here.

The first step in characterization is to determine whether the asset was acquired (1) through services; (2) by gift, devise, or bequest; or (3) in exchange for money or other property.

No conflict of laws arises when an asset is acquired by gift, devise, or bequest. Under Washington law, such an asset is normally the separate property of the acquiring spouse. RCW 26.16.010-.020. Thus, it is not community property under Washington law and certainly it will not be community property under the law of a common-law state.

The law of the marital domicile determines the character of money or other movables acquired in another state as compensation for services, at least between the spouses. Thus, payment for services performed in a common-law state by a married person domiciled in Washington is community property. Snyder v. Stringer, 116 Wash. 131, 198 P. 733 (1921); Colpe v. Lindblom, 57 Wash. 106, 106 P. 634 (1910). Contra In re Pompal's Estate, 150 Wash. 242, 272 P. 980 (1928). Similarly, other kinds of property will be characterized based on the law of the marital domicile when the property was acquired. In re Marriage of Zahm, 138 Wn.2d 213, 225, 978 P.2d 498 (1999). Payment for services performed by a spouse living separate and apart is the separate property of that spouse. RCW 26.16.140. Payment for services performed in Washington by a married person domiciled in a common-law state is separate property. The Restatement (Second) of Conflicts of Laws reaches the same result by asserting that usually the state of domicile has the most significant relationship with an acquisition of movables by one spouse, and the state where real property is situated will typically look to the character of the funds used to acquire it. RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 258 cmt. b, § 234 cmt. a (1971); see also In re Marriage of Holman, No, 45528-1-I, 2001 Wash. App. LEXIS 69, 104 Wn. App. 1011 (Wash. Ct. App. Jan. 16, 2001) (unpublished), review denied, 144 Wn.2d 1012, 31 P.3d 1184 (2001) (applying the marital property law of New York to divide property of a couple who had spent their entire married life in New York).

COLPE V. LINDBLOM, 57 Wash. 106, 106 P. 634 (1910). The husband earned money in Alaska while the wife kept house for him. There was no evidence of their domicile. The earnings were invested in Seattle real estate. Held: The law of the marital domicile was presumptively the same as the law of Washington. The earnings used to acquire the real estate were community property.

SNYDER V. STRINGER, 116 Wash. 131, 198 P. 733 (1921). The husband and wife lived in Washington, but the husband traveled on business. He bought a car in Iowa with funds earned there and in Montana. When he brought the car to Washington, it was levied on to satisfy a judgment that was the husband's separate obligation. Held: The car was community property that could not be reached to enforce a separate obligation.

IN RE ESTATE OF POMPAL, 150 Wash. 242, 272 P. 980 (1928). The court assumed without discussion that the character of personalty acquired in a common-law jurisdiction is determined by the law of that jurisdiction. The asset, therefore, was held to be separate property out of which, at that time, the surviving spouse could not have an award in lieu of homestead. The court did not consider the question of domicile and cited neither Colpe v. Lindblom, 57 Wash. 106, nor Snyder v. Stringer, 116 Wash. 131.

IN RE MARRIAGE OF JACOBS, 20 Wn. App. 272, 579 P.2d 1023 (1978). A husband in military service retained a Washington domicile, although stationed in a common-law state. Held: Military retired pay was community property.

KELLER V. DEP'T

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