§ 4.10 MANAGEMENT OF SEPARATE REALTY

• Jurisdiction: Washington

§ 4.10 MANAGEMENT OF SEPARATE REALTY

Except for antenuptial creditors and tort victims, for whom some relief has been provided, it has long been the rule that a separate creditor can reach neither community property nor the debtor spouse's one-half interest in it. See, e.g., Spokane State Bank v. Tilton, 132 Wash. 641, 233 P. 15 (1925); Snyder v. Stringer, 116 Wash. 131, 198 P. 733 (1921); Schramm v. Steele, 97 Wash. 309, 166 P. 634 (1917), overruled by deElche v. Jacobsen, 95 Wn.2d 237, 247, 622 P.2d 835 (1980); Powell v. Pugh, 13 Wash. 577, 43 P. 897 (1896); Stockand v. Bartlett, 4 Wash. 730, 31 P. 24 (1892); accord Aichlmayr v. Lynch, 6 Wn. App. 434, 493 P.2d 1026, review denied, 80 Wn.2d 1007 (1972); see also Nichols Hills Bank v. McCool, 104 Wn.2d 78, 701 P.2d 1114 (1985). The antenuptial and tort creditor problems are discussed in Chapter 6.

On the other hand, the separate creditor can reach the separate property of the debtor spouse. Under the statutes, it is obvious that a spouse can contract to convey his or her separate real or personal property just as if the spouse were unmarried. RCW 26.16.010, .020. The owning spouse can sue for breach of the contract to purchase, Wills v. Armond, 115 Wash. 73, 196 P. 649 (1921), and may be sued for specific enforcement of the contract to sell, Bryant v. Stablein, 28 Wn.2d 739, 184 P.2d 45 (1947); Leroux v. Knoll, 28 Wn.2d 964, 184 P.2d 564 (1947).

In the case of a mortgage or lien on separate realty, subsequent satisfaction of the underlying obligation with community funds does not create a community property interest in the asset; however, an equitable lien may be impressed on the separate property to enforce a community right of reimbursement. Merkel v. Merkel, 39 Wn.2d 102, 234 P.2d 857 (1951); see In re Kruse's Estate, 52 Wn.2d 342, 324 P.2d 1088 (1958) (actual evidence of community contribution required).

The right of reimbursement and equitable lien problems are discussed in Chapter 3, § 3.04.

If a homestead is declared by a married person or a registered domestic partner, that property, whether community or separate, cannot be conveyed or encumbered by one spouse or domestic partner acting alone. RCW 6.13.060; see Davies v. Metro. Life Ins. Co., 191 Wash. 459, 71 P.2d 552 (1937). The 1981 amendments to the Homestead Act, former Chapter 6.12 RCW, made a homestead exemption automatic if the statutory occupancy requirements are met, instead of requiring a formal declaration of homestead...