Using Community Property Agreements to Avoid Probate

In some states, married couples can sign agreements that leave property to each other and avoid probate.

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In Alaska, Idaho, Texas, Washington, and Wisconsin, a married couple can sign an agreement that will determine what happens to some or all of their property at death. Usually, couples use these agreements to declare all of their property to be community property, and then leave it to the survivor, without probate, when one spouse dies. The agreement functions much like a will—with the important difference that the property doesn't have to go through probate when the first spouse dies.

Learn more about community property in general.

States That Authorize Community Property Agreements

State

Statute

Alaska

Alaska Stat. § 34.77.090

Idaho

Idaho Code § 15-6-201

Texas

Tex. Probate Code Ann. § 451

Washington

Wash. Rev. Code § 26.16.120

Wisconsin

Wis. Stat. Ann. § 766.58

Different states have different rules about what makes community property agreements valid. All states require them to be in writing. They may need to be witnessed or notarized. If the agreement covers real estate, you may also need to record (file) it in the county where you live and where the real estate is located. Be sure you understand what you're doing. If you want to create a community property agreement, be sure to check your state's current rules. If you don't, your agreement may not have the effect you intend.

Another reason for caution is that these agreements are binding contracts. Neither spouse can, acting alone, change or revoke them. (By contrast, you can always revoke your will.) Generally, the only ways to revoke a community property are to:

  • agree to cancel (rescind) the agreement
  • divorce, or
  • separate permanently.

You can’t, for example, just leave property to someone else in your will.

EXAMPLE: Angeline and her husband, John, who lived in Washington, signed a community property agreement declaring that when one of them died, everything the deceased spouse owned would be converted to community property and would go to the survivor. Later, the couple separated. John filed for legal separation. Angeline made a new will, leaving nothing to John, and died two days later.

A legal fight ensued, with John claiming that the agreement was still valid—and that as a result, he was entitled to inherit all of Angeline's property. Eventually, the Washington Supreme Court agreed, ruling that under the state statute, only divorce could end the agreement. (Estate of Bachmeier, 52 P.3d 22 (2002).)So despite the fact that the couple was legally separated, and the wife had made a will leaving her husband nothing, the husband still inherited everything.

These rules are mostly determined by courts, and may change. If you have questions about the validity of a community property agreement, or want to revoke one, see a lawyer.

In Alaska and Wisconsin, a community property agreement can name a beneficiary to inherit the property at the second spouse's death. (In Washington, some commentators are of the opinion that this is allowed, but courts have not explicitly said so.) After one spouse dies, however, the survivor can amend the agreement to change who inherits his or her property, unless the agreement expressly forbids it.

EXAMPLE: Julie and Alphonse make a community property agreement. The agreement states that when one of them dies, all of his or her property will go to the surviving spouse. The agreement further states that when the second spouse dies, everything he or she owns will go to Julie's son from a prior marriage.

Julie dies first. Alphonse decides that he doesn't want to leave everything to Julie's son; he wants to leave some money to charity at his death as well. He is free to do so.

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