WASHINGTON PROBATE LITIGATION

Protecting Your Rights as an Heir or Beneficiary

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WA-Probate > Probate-Litigation > Rights of Decedent's Spouse or Child

 

C.  Rights of Decedent's Spouse or Child

  1. Do I, as Decedent's Surviving Spouse, Have Any Specific Rights?

  2. Do I, as a Child of Decedent, Have Any Specific Rights?

 

1.  Do I, as Decedent's Surviving Spouse, Have Any Specific Rights?    ñ

 

First things first:  Who is a "spouse" in Washington for probate purposes?

The question about the specific rights of Decedent's "surviving spouse" can become an issue, for example, in one of the following situations:

In these situations especially, you may need to be vigilant to see that your rights are preserved.  Washington law provides some support specifically to you, as follows:

 

 

a.  Right to Be Appointed Personal Representative

 

i.  A Testacy

 

Regardless of Decedent's nomination of another as Personal Representative, you have the right to:

If Decedent has nominated another, and the nominee is able and willing to serve, he/she may also be appointed upon his/her filing a Petition for Letters during that forty day period but only as regards Decedent's separate property (unless you have received timely Notice of Hearing and taken no action or have waived your right to administer the community property).  Consequently, if during the forty day period, both you and the nominated Personal Representative file your respective Petitions, the estate will be administered by co-Representatives, you handling the community and the nominee handling the separate property.

 

If Decedent has nominated you as his/her Personal Representative, this forty day limitation is inapplicable, and you have the right to be appointed Personal Representative over Decedent's entire probate estate regardless of when you file your Petition for Letters.  Estate of Lyman, 7 Wn. App. 945 (1973)

 

ii.  An Intestacy

 

You have the right to be appointed Personal Representative and administer all of the estate (or to nominate someone to do so) so long as you file (or your nominee files) a Petition for Letters of Administration by forty days after Decedent's death.  RCW 11.28.120

 

iii.  Limitations

 

Caution: Both of your rights stated above are subject to both of the following limitations:

Given these circumstances, unless the community is insignificant, it would appear advantageous for you to timely file for appointment as Personal Representative over the community in order to maintain control over the community, to have access to it, and to obtain information about it to support any question regarding its characterization as community and not separate property.

 

 

b.  Right to Succeed to Property: Depends on Community vs. Separate Character & Whether Decedent Left a Will

 

It is to your advantage that property in the estate be characterized as community and not as Decedent's separate property, because:

You are best be able to oversee the characterization of estate property by serving as Personal Representative over the community.  If you don't serve as Personal Representative, you can still oversee its characterization from a distance, as follows:

 

c.  Right to "Elect Against the Will"

 

A Will election occurs when a testator attempts in his/her Will:

The classic example is a husband in a community property state, such as Washington, who writes his Will as if he lived in a separate property state, such as New York: "I give all of my and my wife's property (ie, their community property) to my Trustee for the benefit of my surviving wife and children.  My wife shall receive all the interest and dividends from the Trust during her life, and at her death, the assets of the Trust shall be divided among my then surviving children by right of representation."  If effect, the husband is attempting to force his surviving wife to give up her 1/2 interest in their community property in return for a life interest in all their community property.  In situations such at this, Washington law provides that the surviving spouse must elect to take either:

Estate of Cooper, 32 Wn.2d 444 (1949); Tacoma Savings & Loan Assn. v. Nadham, 14 Wn.2d 576 (1942); Collins v. Collins, 152 Wash. 499 (1929).

 

 

d.  Right to Family Award

 

Statutory Authority for Family Award.  RCW 11.54 governs family awards in probate estates.  RCW 11.54.010(1) provides who may petition for an award:

The petition for an award is generally required to be filed before the earliest of:

The award may be made from either the community or, more favorably to the surviving spouse, the separate property of the Decedent.  RCW 11.54.010(2)

 

The award is now discretionary, and the amount of the “basic” award is now $125,000.  RCW 11.54.020  [According to prior WA law, an award of the basic amount, then $20,000, was mandatory to the surviving spouse.  Estate of Boston, 80 Wn.2d 70 (1971); Estate of Pesterkoff, 37 Wn. App. 418 (1984); Chesnin v. Fischler, 43 Wn. App. 360 (1986).]  The $125,000 basic amount may be increased or decreased in the Court’s discretion.  The Court may:

Decrease the award to a surviving spouse if:

In determining the needs of the claimant, the Court is required to consider, among other issues:

The award requires that the funeral expenses, expenses of last sickness, and expenses of administration have been paid or provided for, and that no recipient has participated in the willful and unlawful killing of the decedent.  RCW 11.54.030

 

The major benefit of receiving property as a family award is that, with few exceptions, it takes priority over all gifts, taxes, and claims in the estate, for example, all debts, including judgments and judgment liens, of the Decedent and the surviving spouse occurring at the Decedent’s death.  RCW 11.54.070  [Exceptions:  Property either being purchased on contract or subject to encumbrance or DSHS medical expense reimbursement liens.]

 

Case Authority for Family Award to Surviving Spouse.  Washington has a strong social policy favoring a family award to a decedent’s surviving spouse.  The current statute, RCW 11.54.010(1), enacted in 1997, arose from the former RCW 11.52, which provided for an “award of homestead” or an “award in lieu of homestead.”  In Estate of Dillon, 12 Wn. App. 804, 806 (1975), the Court opined:

It is true that the granting of the award could interfere with the testamentary plan of the decedent.  But this is not a reason to reduce or deny the award.  By its nature the statutory award will in many instances frustrate testamentary desires.  This will usually be so where the assets of the estate are small.  Yet the award in lieu of homestead has long been in existence and the maximum amount of the award has been continually revised upwards.  The statute was enacted for the protection and benefit of the surviving spouse and/or minor children. We therefore do not consider it unreasonable to award an elderly widow of modest means and inheritance the maximum amount of [the statutory amount].  […]

 

Statutes like RCW 11.54.040 rest upon sound public policy, are favored by law, and should be liberally construed [in favor of those who are entitled to benefit from them].  [Three citations omitted.]

The Washington Supreme Court cited Estate of Dillon in Estate of Crawford, 107 Wn.2d 493, 502 (1986):

"Awards in lieu of homestead are FAVORED BY LAW and the statutes permitting them should be liberally construed in favor of those who are entitled to benefit from the award." (Italics ours.)  See Estate of Dillon [citation omitted].  The law favors awards in lieu of homestead as a matter of right for the protection of the surviving spouse and as a measure of fairness.

The only known case interpreting the current statute, RCW 11.54.010, is Estate of Garwood, 109 Wn. App. 811 (2002), where the Court, at page 814, cited Estate of Crawford:

The law favors awards in lieu of homestead as a matter of right for the protection of the surviving spouse and as a matter of fairness.

 

And further opined, at page 817:

The award in lieu of homestead is a statutory device that can alter the testamentary wishes of the decedent, the intestate succession statutes, and the rights of creditors.  It can also blur the distinctions of community property and probate and nonprobate assets.

In the usual case, Decedent’s surviving wife has lost her mate and either works full-time to support herself or is unable either physically or due to a lack of employable skill to work to provide for her maintenance and support during probate administration.  Based on Washington’s strong social policy favoring a family award to a decedent’s surviving spouse despite the provisions of the decedent’s Will, the intestacy laws, and the community property laws, Decedent’s surviving wife is generally awarded a family award of $125,000 as a matter of fairness.

 

Side-bar: The basic, $125,000 award for family support has priority over all gifts and all other claims made in the estate.  RCW 11.54.060(1)  Consequently:

Example of a Surviving Spouse Who Took Advantage of Her Right to Receive a Family Support.

 

Exception: A surviving spouse is not eligible for a family award if the couple has executed a formal separation agreement dividing all their property and waiving all claims to the other's property.  Estate of Lindsay, 91 Wn. App. 944 (1998).

 

 

e.  Right as an Omitted Spouse

 

If Decedent died testate, you married Decedent after he/she made the Will, and the Will fails to name or provide for you, then regardless of the Will's provisions, you, as a so-called "omitted spouse," are entitled to receive from the estate what you would have received had Decedent died intestate --- your "intestate share."  RCW 11.12.095

 

f.  Surviving Spouse's Liability for Decedent's Debts

 

A spouse is always separately liable for his or her own torts or contracts.  The act of one spouse, however, can create community liability under the doctrine of respondeat superior --- that the act was done for the benefit of the marital community or in the course of managing community property.  Benson v. Bush, 3 Wn.App. 777 (1970); Aichlmayr v. Lynch, 6 Wn.App. 434 (1972).  If the claim (whether separate or community) arose as a result of the Decedent's act (eg, the Decedent signed the contract), the claim may be barred by the claimant's failure to file a Creditor's Claim within the appropriate statute of limitations period, typically four months from the date of first publication of the Probate Notice to Creditors.  Graham v. Radford, 71 Wn.2d 752 (1967); Ruth v. Dight, 75 Wn.2d 660 (1969).  If, however, the surviving spouse is separately liable on the claim (eg, the surviving spouse signed the contract), the creditor is not required to file a Creditor's Claim against the Decedent's estate and can reach the assets, such as the former community property, of the surviving spouse, which, as a result of the Decedent's death, became the separate property of the debtor-survivor.  Brown v. Fire Protection Dist., 21 Wn.App. 886 (1978).

 

2.  Do I, as a Child of Decedent, Have Any Specific Rights?    ñ

 

a.  Right to Be Appointed Personal Representative

 

i.  A Testacy

 

If Decedent has nominated you as Personal Representative and no one is then serving, you have the right to be appointed Personal Representative and administer all of the estate if:

[As Decedent's nominee, you always have the right to be appointed co-Personal Representative and administer Decedent's separate property.]

 

ii.  An Intestacy

 

If no one is then serving, you and any other petitioning sibling have the right to be appointed Personal Representative and administer all of the estate if:

iii.  Limitations

 

Caution: Both of your rights stated above are subject to both of the following limitations:

Given these circumstances, unless the surviving spouse has filed a Petition for Letters or Decedent's separate property is insignificant, it would appear advantageous for you to timely file for appointment as Personal Representative over the entire estate or just Decedent's separate property in order to maintain control especially over the separate property, to have access to it, and to obtain information about it to support any question regarding its characterization as separate property and not as community.

 

b.  Right to Succeed to Property: Depends on Community vs. Separate Character & Whether Decedent Left a Will

 

In the case of an intestacy, you and Decedent's surviving spouse are on opposite ends of a see-saw.  There, while it is to the surviving spouse's advantage that estate assets be characterized as community property, it is to your advantage that they be characterized as Decedent's separate property.  This result occurs because while the surviving spouse as an heir is entitled to take all of Decedent's half of the community assets, a child of Decedent is entitled as an heir to take only a portion of Decedent's separate assets.

 

A child as an heir can oversee the characterization of the estate's assets from a distance in the same manner as Decedent's surviving spouse, as described above in Paragraph 1.b.

 

c.  Right to Family Support

 

As described above in paragraph 1.c., a basic award for family support in the amount of $40,000 (subject to increase or decrease by the Court) is able to be made among any surviving spouse and certain of Decedent's children, namely:

But see Estate of Garwood, 109 Wn. App. 811 (2002), where the Court held that an adult child cannot petition the Court for an award of family support unless the surviving spouse has petitioned the Court for one first.

 

Consequently if you fit into either of these categories, you may be eligible for a family support award as further described in paragraph 1.c above.

 

d.  Right as an Omitted Child

 

If Decedent died testate, you were born to or adopted by Decedent after he/she made the Will, and the Will fails to provide for you, then regardless of the Will's provisions, you, as a so-called "omitted child," are entitled to receive from the estate what you would have received had Decedent died intestate.  RCW 11.12.091

 

 

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