Under Washington State law, all of a person’s property falls into one of these categories: community property, separate property, community-like property, or quasi-community property. Courts use these property categories to make decisions about property in several types of legal cases, including probate cases.
With some exceptions (listed below), all of the property that a person and his/her spouse or state registered domestic partner1 acquire during their marriage or state registered domestic partnership — while living in a state that recognizes community property (such as Washington) — is community property.2 This includes real property, such as land and buildings, as well as earnings from wages and other contractual benefits, such as stock options, insurance, pension plans, etc. Both spouses or partners each possess an equal one-half interest in all of their community property.
Under the following exceptions, property acquired during a marriage or state registered domestic partnership is not community property:
- a gift of property given to just one spouse or partner, but not the other (the gift is the recipient’s separate property)3;
- property inherited by just one spouse or partner, but not the other (the inheritance is the recipient’s separate property);
- rents, issues, and profits generated by separate property (which become the separate property of the spouse or partner whose separate property generated them);
- property acquired outside of Washington State in a place whose laws do not recognize community property, but which would have been community property if it had been acquired in Washington State (such property is quasi-community property); and
- property that would be community property, but for an enforceable written agreement between spouses or partners to treat it as separate property (such property is separate property).
People who are not married or in a state registered domestic partnership, including those who are divorced, widows, or widowers, do not own community property. Property that was community property during a marriage or state registered domestic partnership becomes separate property when the marriage or state registered domestic partnership is legally terminated (for example, upon a family court’s issuance of a decree of dissolution).
Where characterization of property is unclear, the source used to acquire the property will likely determine its character. For example, if during your marriage you purchase a rental property with money that is community property, then that property and the rental income from it is community property. In contrast, if you buy a rental property with money that you had acquired prior to the marriage, then the rental property and the rental income from it are your separate property. If the source of property acquired during marriage is not ascertainable, a court will likely presume that the property is community property.
When items of separate and community property are combined in such a way that makes it difficult to tell which items are separate and which are community, then the property is deemed “commingled.” Commingled property is presumed to be community property unless a person can prove which commingled items are separate property. For example, when spouses combine their separate property funds with their community property funds into a single shared bank account, the funds in the account will be commingled and treated as community property.
If you need to know whether an asset you own is community property and are having difficulty making that determination, we recommend you speak with a lawyer licensed to practice where you live.
Regardless of how property is characterized, spouses and partners can change the characterization if they make an enforceable written agreement to do so.
If you are married, you may give your one-half interest in community property through your will. If you die intestate and are survived by a spouse or partner, your entire one-half interest in community property will pass to your surviving spouse or partner.