Christopher S. Mulvaney,

Attorney and Counselor-at-Law

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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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Separate Property documentation and Trust Amendments in Washington State.

1. Documentation for Separate Property

In Washington State, a Community Property state, all property acquired during marriage is presumed to be Community Property, meaning it belongs equally to both spouses. However, there are exceptions for Separate Property, which includes: 

• Property owned before the marriage.
• Gifts or inheritances received by one spouse during the marriage.
• Property acquired during the marriage with separate funds and with the explicit intention of keeping it separate.
• The rents, issues, and profits derived from separate property.

The necessity of written documentation for separate property arises from the community property presumption. To demonstrate that an asset is separate, a spouse needs clear evidence of its acquisition and that it remained distinct from marital assets.

Documentation can include: 

• Financial statements.
• Transfer records.
• Testimony.
• Deeds, if applicable.
• Prenuptial or postnuptial agreements. 

Written documentation becomes crucial during divorce proceedings or estate planning to prevent commingling, where separate assets become indistinguishable from community property and may be subject to division. 

2. Spousal consent for amending Separate Property Trusts

RCW 11.103.030, a section of Washington law governing Trusts, specifies the following: RCW 11.103.030. 

• If a revocable trust has more than one trustor (creator):
  • To the extent the trust holds community property, it can be revoked by either spouse acting alone.
  • However, amending that part of the trust requires the joint action of both spouses.
  • For the portion of the trust with property other than community property, each trustor can revoke or amend the trust regarding their own contribution. 

This implies that if a married person creates a Separate Property Trust, but that Trust also contains some Community Property or is structured in a way that blends community and separate property, then changes affecting the community property portion would necessitate spousal consent, even if the primary intent was to protect separate assets. 

Amending a Married Separate Trust provisions regarding gifts to the Spouse requires joint action or consent to ensure proper handling of Community Property interests within the Trust, even when dealing with what was initially intended as a Separate Property Trust. This aligns with the principle of protecting each Spouse’s Community Property Rights in Washington State. 

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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.