§ 5.04 DONATIVE ACQUISITIONS AND GIFTS

• Jurisdiction: Washington

§ 5.04 DONATIVE ACQUISITIONS AND GIFTS

RCW 26.16.030(2) provides that "[n]either person shall give community property without the express or implied consent of the other." Although the statute does not specifically define "give," what is probably meant is a gratuitous transfer.

Interspousal transactions are not presumptively gifts when the asset is acquired with community funds, even though the title is placed in the name of the nonacting spouse. The basic community property presumption and the requirement that it be overcome by clear and convincing evidence impedes the showing of gift under such circumstances. In re Slocum's Estate, 83 Wash. 158, 145 P. 204 (1915). The clear and convincing evidence necessary to overcome the presumption inherently establishes the necessary consent required by the statute. Of course, if either spouse acquires an asset with that spouse's separate property, title to which is taken in the name of the other spouse, there exists a rebuttable...