Christopher S. Mulvaney,

Attorney and Counselor-at-Law

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THIS WEBSITE INCLUDES GENERAL INFORMATION & THE OPINIONS OF CHRISTOPHER S. MULVANEY. IT IS INTENDED TO STIMULATE A BASIS FOR QUESTIONS RELATED TO YOUR PARTICULAR FACTUAL CIRCUMSTANCES — BEFORE YOU ACT.  THIS WEBSITE DOES NOT CONSTITUTE LEGAL ADVICE. IF YOU WANT LEGAL ADVICE, PLEASE MAKE A ZOOM APPOINTMENT TO SPEAK WITH ME.

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Gonzaga University School of Law – Spokane, Washington – Class of 2002 – Cum Laude The Latin phrase “Deo patriae, scientiis, artibus” translates to “For God and country through sciences and arts”.  The initials A.M.D.G. on the seal of Gonzaga Law School stand for Ad Majorem Dei Gloriam, which is Latin for “For the Greater Glory of God” the Motto of the Society of Jesus (Jesuits): a Catholic religious order founded by St. Ignatius of Loyola.

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In Washington state, which is a community property state, the requirement for spousal permission to amend a married separate property trust generally depends on the nature of the trust’s assets. 

Here’s a breakdown of the key factors:

• Community Property: Assets acquired during the marriage are typically considered community property, owned equally by both spouses.
  • According to Washington State law, if a revocable trust includes community property, it can be amended only by joint action of both spouses or domestic partners, unless the trust agreement specifies otherwise.
• Separate Property: Property that a spouse owned before the marriage, or received as a gift or inheritance during the marriage, is considered their separate property.
  • In general, a trust consisting solely of separate property can be revoked or amended by the trustor who contributed that property. This is because the non-contributing spouse does not have an ownership interest in that separate property.
• Mixed Trusts: If a trust contains both community and separate property, the rules become more nuanced.
  • To the extent the trust holds community property, spousal consent is generally required for amendment.
  • For the portion of the trust made up of separate property, the trustor contributing that property can usually make amendments. 

Why Community Property Matters:

The requirement for spousal consent for community property is rooted in the concept of equal ownership. Since each spouse has an undivided half interest in community property, any action affecting that property, like amending a trust that holds it, typically requires the agreement of both spouses. 

Important Notes:

• Trust Agreement: The specific terms of the trust agreement can override the general rules regarding amendment.
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• Legal Advice: It is crucial to consult with Christopher S. Mulvaney to understand how these laws apply to your specific situation and trust agreement. Legal requirements and interpretations can vary, and seeking professional guidance is essential for ensuring your trust is structured and managed correctly.

WARNING: A SEPARATE PROPERTY TRUST BECOMES IRREVOCABLE WHEN THE TRUSTOR, THE PERSON WHO CREATED IT, DIES. THAT MEANS THAT THE TRUST CANNOT BE CHANGED BY ANYONE, EVEN A COURT. SO, IF A MARRIED PERSON PUTS ASSETS INTO A SEPARATE TRUST AND DIES, THE SURVIVING SPOUSE HAS NO RECOURSE IF THE TRANSFER WAS IMPROPER.

THE LEGISLATURE HAS IMPORTANT SAFEGUARDS SUCH AS THE REQUIREMENT OF A SPOUSAL CONSENT FORM TO NAME ANYONE OTHER THAN A SPOUSE AS PRIMARY BENEFICIARY ON A 401(K) ACCOUNT AND THE REQUIREMENT THAT A SPOUSE SIGN A QUITCLAIM DEED AND THAT IT IS RECORDED TO RELEASE A TITLE INTEREST IN REAL ESTATE. BOTH OF THESE CANNOT BE CHANGED AFTER DEATH. HOWEVER, COMMINGLING OF ASSETS CAN CREATE COMPLICATING ISSUES.

◄ Warning ► Under RCW 11.103.030(2)(a), to the extent the Trust consists of community property, it may be amended only by joint action of both spouses to protect the surviving spouse.

So, the best practice is to have both spouses sign to create a Married Separate Trust, and to have both spouses sign to Amend and Restate a Married Separate Trust. If only one spouse signs, and the Trust contains any Community Property at all, then the Amendment and Restatement is not valid.

There could be litigation to determine if the Trust only contains Separate Property. That means if documentation is not complete, and traceable for every dollar in the Trust, then the presumption of Community Property applies, and the Amendment and Restatement signed by only one spouse is invalid.

In Washington State, the ability of a married person to amend a separate property trust without their spouse’s signature generally depends on whether the trust contains any community property. 

The key legal principle from Washington State law is:

• RCW 11.103.030(2)(b) states: “To the extent the trust consists of property other than community property, each trustor may revoke or amend the trust with regard to the portion of the trust property attributable to that trustor’s contribution”. 

This means:

• If the married separate property trust exclusively holds property clearly defined as the trustor’s separate property (property owned before the marriage, or acquired during the marriage by gift or inheritance), then the trustor generally can amend that trust regarding their contributed portion of the trust property without their spouse’s consent.
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• However, if the trust contains any community property, then under RCW 11.103.030(2)(a), to the extent the trust consists of community property, it “may be amended only by joint action of both spouses or both domestic partners”. 

Therefore:

• To amend a married separate property trust in Washington State without a spouse’s signature, the trust must consist solely of separate property.
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• If any community property has been mixed with the separate property in the trust, making it difficult to identify the separate property, or if the trust explicitly includes community property, then both spouses’ consent is required for amendments. 

Important considerations:

• The terms of the trust agreement itself are crucial. A trust agreement may have specific provisions that outline how amendments can be made, which could alter the general rules.
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• Commingling of Assets: If separate property and community property have become mixed in a way that makes it impossible to trace the original character of the assets, the property may be treated as community property, potentially requiring spousal consent for amendments.
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• It is strongly recommended to consult with Christopher S. Mulvaney to ensure that any trust amendments are legally valid and to understand how community property laws apply to your specific situation. 

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Washington State residents can meet with me in Zoom/DocuSign from anywhere in the world, and I can notarize their electronic signatures because I am a remote online notary.  Just email me an image of your photo ID.