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.
The simplest way to understand separate property is to recognize that it is the category into which all of a person’s property falls that is not community property, community-like property, or quasi-community property.
For a single person (one who is neither married nor in a state registered domestic partnership), this is often a straightforward question because a single person does not own community property or quasi-community property. This means all of the property a single person owns can be characterized as separate property or community-like property. Married people and domestic partners1 must consider all four types of property to properly characterize what they own.
For a person who is married or is a domestic partner, separate property includes all of the property the person owned (other than community-like property) before their current marriage or state registered domestic partnership, plus the following property, even if acquired during the marriage or domestic partnership:
- a gift of property given to just one spouse or partner, but not the other (the gift is the recipient’s separate property)2;
- 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); and
- property that would be community property, but for an enforceable written agreement between spouses or partners to treat it as separate property.
Separate property is not subject to the separate debts or contracts of the owner’s spouse or domestic partner, and the owner of separate property may manage, lease, sell, convey, encumber, or give by will the separate property without his or her spouse’s or domestic partner’s agreement or participation.3
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 separate 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.
For the purposes of drafting your will, you may give away your interest in all of your separate property. If you die without a will, your interest in separate property will be distributed according to the laws of descent and distribution in intestacy.