Chapter B. Distribution Under The Intestacy Statute

• Jurisdiction: Washington

B DISTRIBUTION UNDER THE INTESTACY STATUTE

Because Washington is a community property state,³ the intestacy statute does make a distinction between the distribution of community and separate property. This distinction is made only when there is a surviving spouse of the intestate. If there is no surviving spouse, all property, regardless of its characterization as separate or community, is distributed to the statutory takers in the same manner as if it were all separate property.⁴

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B.1. Distribution When There Is a Surviving Spouse or Registered Domestic Partner⁵

B.1.a. Community Property

A married person who dies intestate in Washington will have one-half of the community property included in his or her estate for distribution under the intestacy statute. The other one-half of the community property already belongs to the surviving spouse and is not, therefore, subject to distribution under the statute.⁶ Since the 1974 amendments to the intestacy statute, the decedent's one-half of the community property passes to the surviving spouse,⁷ regardless of whether there are issue, parents, or any other lineal or collateral relatives of the intestate still living.⁸

A surviving partner in a nonmarital (at the time called "meretricious" but now referred to as "quasi-marital" or, most recently, "committed intimate") relationship is not a "surviving spouse" for purposes of inheritance under the laws of intestate succession. Peffley-Warner v. Bowen, 113 Wn.2d 243, 778 P.2d 1022 (1989). Therefore, unless they are registered domestic partners (see note 5), when one dies he or she will not take the share of property that the intestacy statute allocates to a surviving spouse, as described below. Nevertheless, property the couple acquired jointly during their relationship will be equitably divided in the same manner as if it were community property, regardless of how the property is titled. Olver v. Fowler, 161 Wn.2d 655, 168 P.3d 348 (2007). In other words, the property of the deceased partner available to distribute under his or her will or by intestacy will not include the half of their jointly-owned property that belongs to the surviving partner by analogy to community property. Id. If there is no will, the other half of such property will be distributed under ordinary intestacy principles, and as mentioned above, the surviving partner will not be entitled to a share of that portion or any other part of the estate as a surviving spouse. See also In re Estate of Langeland, 177 Wn. App. 315, 329-30, 312 P.3d 657 (2013), review denied, 180 Wn.2d 1009 (2014). The Olver opinion, as well as that of the lower court (Olver v. Fowler, 131 Wn. App. 135, 126 P.3d 69 (2006)), contains a detailed discussion of the 90-year history behind this result, which began with the so-called "innocent spouse" cases and developed, one step at a time, as society's view and treatment of domestic partners evolved.

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B.1.b. Separate Property

B.1.b.(1) Surviving Spouse and Issue

If there is a surviving spouse and surviving issue of the intestate, one-half of the separate property is distributed to the surviving spouse and one-half is divided among the issue of the nearest degree who either survive the intestate or leave issue of their own who survive, the latter taking by right of representation.⁹ Consider the following illustration (surviving persons are underlined):

In the above situation, the surviving spouse will inherit one-half of the separate estate and the issue will share the other one-half C-2 will inherit one-fourth and GC-1 and GC-2 will share the other one-fourth, each receiving one-eighth of the estate. GC-3 receives none of the estate, as C-2 is still alive.

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B.1.b.(2) Surviving Spouse and Surviving Parent(s) (No Surviving Issue)

If there is a surviving spouse (but no issue) and one or both parents¹⁰ of the intestate or issue of the intestate's parents are also surviving, then the separate estate will be distributed three-fourths to the surviving spouse and one-fourth between the surviving parents or issue of parents.¹¹

B.1.b.(3) Surviving Spouse and No Surviving Issue, Parents, or Issue of Parents

If there is a surviving spouse and no surviving issue, parents, or issue of parents of the intestate, the entire separate estate...