Washington law, for title research

Is Washington a community property state? Yes: the RCW rules, and why both spouses join to buy or sell community land

Every rule below is quoted from the Revised Code of Washington or another official source, linked and checked on the date shown. General information, not legal advice.

What counts as community property in Washington?

Property acquired during the marriage that is not separate. RCW 26.16.030 defines it by exclusion: property not acquired or owned as separate property under RCW 26.16.010 and 26.16.020, and acquired after the marriage or after registration of a state registered domestic partnership by either or both, is community property. The same rules apply to state registered domestic partners as to spouses.

RCW 26.16.010 defines separate property as what a spouse owned before the marriage and what the spouse acquired afterward by gift, bequest, devise, descent or inheritance, together with the rents, issues and profits of that property. RCW 26.16.020 is the parallel section for domestic partners. RCW 26.16.010 says a spouse may sell, convey or encumber separate property without the other spouse joining, though the homestead rule below can still apply. RCW 26.16.140 reaches another category: when spouses are living separate and apart, each one's earnings and accumulations are that spouse's separate property, and a deed between spouses can also create separate property.

A note on dates: these are current rules. RCW 26.16.030's source note shows amendments in 1972, 1981 and 2008, and we have not tested how older law treats an older deed, so an old transaction is a question for a Washington attorney.

Do both spouses have to sign to buy or sell Washington real estate?

For community real property, generally yes, at both ends of the transaction. RCW 26.16.030 lets either spouse act alone in general, but it says neither may sell, convey or encumber community real property without the other joining in the deed or other instrument, which both must acknowledge, and neither may purchase or contract to purchase community real property without the other joining in the transaction of purchase or the contract.

There are stated exceptions. RCW 26.16.090 lets one spouse sign the other's name under a letter of attorney. A spouse who alone participates in managing a business may, by RCW 26.16.030(6), in the ordinary course of that business, sell, convey or encumber its assets, including real estate, without the other's consent; where both participate, consent is required.

The homestead rule in RCW 6.13.060 is separate. RCW 6.13.020 says a homestead may consist of community or jointly owned property or the separate property of either spouse, and RCW 6.13.010 ties it to property used as a residence. A homestead cannot be conveyed or encumbered unless the instrument is executed and acknowledged by both spouses or both domestic partners, though either or both may sign powers of attorney for the conveyance or encumbrance. A title search on a married Washington owner looks for a deed or deed of trust signed by one spouse alone, and whether one of these sections explains it.

A buyer has separate protection. RCW 26.16.095 says a deed from the person holding legal record title to an actual bona fide purchaser conveys title free of claims not appearing of record in the county auditor's office. RCW 26.16.100 lets a spouse with an interest in land titled in the other's name protect it by recording an instrument, and without one within ninety days after legal title is of record, a bona fide purchaser from the record holder takes free of that spouse's claim. RCW 26.16.110 calls that instrument a cloud on title until released or removed by a court. How these fit a given sale is a question for a Washington attorney.

What happens when one Washington spouse deeds property to the other?

It changes the character of the property. Under RCW 26.16.050, a spouse may convey directly to the other spouse his or her community interest in community real property, and every such deed divests the property of any claim as community property and vests it in the grantee as separate property. The grantor signs and acknowledges the deed as a single person, without the grantee joining. The statute also says these transfers do not affect any existing equity in favor of the grantor's creditors at the time of the transfer.

Such a deed matters for every later transaction. RCW 26.16.210 adds that where a question arises as to the good faith of a transaction between spouses, the burden of proof is on the party asserting good faith. A title search that finds such a deed reports it, along with any later instrument.

What is a Washington community property agreement?

An agreement between both spouses on what happens to their community property at the death of either. RCW 26.16.120 lets both spouses jointly agree on the status or disposition of all or part of their community property, owned then or acquired later, to take effect on the death of either. The agreement must be a written instrument, witnessed and acknowledged with the same formalities the law requires for deeds to real estate, and it may be amended the same way.

The statute limits it: the agreement does not derogate from the rights of creditors, and a court may set it aside for fraud or on another recognized equitable ground. For a title search, such an agreement is one of the instruments that can explain how a surviving spouse came to hold title alone, so the report looks for it in the county records. The section does not require it to be recorded, so one may exist without appearing there.

How is property divided in a Washington divorce?

RCW 26.09.080 directs the court, without regard to misconduct, to dispose of the parties' property and liabilities, community or separate, as appears just and equitable after considering all relevant factors. The statute names four of them: the nature and extent of the community property, the nature and extent of the separate property, the duration of the marriage or domestic partnership, and each party's economic circumstances when the division takes effect, including the desirability of awarding the family home, or the right to live in it for reasonable periods, to a spouse with whom the children reside the majority of the time.

Two points follow for land records. The statute reaches separate property as well as community assets, and it does not state an equal split. The statute says nothing on recording a decree. As search practice, a report looks for the decree and any deed that carries it out in the county where the property is located. RCW 11.07.010 separately revokes earlier provisions for a former spouse or partner relating to transfer at death of a nonprobate asset, and its list includes a transfer on death deed.

What happens to community property when a Washington spouse dies?

A will can dispose of only half. RCW 26.16.030(1) says neither spouse may devise or bequeath by will more than one-half of the community property. RCW 11.02.070, subject to the sections it names, confirms one-half to the surviving spouse or domestic partner, but the whole community is subject to probate administration, including for community debts. RCW 11.04.250 vests title immediately in the heirs or devisees, subject to debts and charges. Without a will, RCW 11.04.015 gives the surviving spouse or state registered domestic partner all of the decedent's share of the net community estate, together with a share of the decedent's separate estate that depends on whether issue, parents or their issue survive.

Other instruments can change the route. An agreement under RCW 26.16.120 takes effect on the death of either spouse. RCW 64.28.010 lets spouses holding title as community property create a joint tenancy with right of survivorship by a written instrument that expressly declares it, and it says such a transfer does not derogate from the rights of creditors. RCW 64.28.040 presumes such an interest in both names to be community property, passes it to the survivor, treats it as community property in all other respects, and lets either spouse sever it. Property from another state has its own rule: RCW 26.16.230 gives the survivor one-half of quasi-community property, as RCW 26.16.220 defines it. A report on property where an owner has died reads the vesting, any agreement or joint tenancy, and any probate order together.

What a title search checks on a married Washington owner

A title check before buying reads the chain of title behind each vesting: what the instruments recite about marital status when title was taken, who signed and acknowledged each key deed and deed of trust, whether a deed from one spouse to the other appears, whether a claim under RCW 26.16.100, an agreement under RCW 26.16.120 or a joint tenancy was recorded, and whether a divorce decree is in the county records. Whether a spouse who is not on the deed holds an interest is a legal conclusion for a Washington attorney; the report shows the record that question turns on.

The Washington marital property rules on this page, with their sources

Sources: IRS Publication 555, Community Property; RCW 26.16.030; RCW 26.16.010; RCW 26.16.050; RCW 26.16.140; RCW 26.16.120; RCW 6.13.060; RCW 26.09.080; RCW 11.04.015; RCW 64.28.010; RCW 26.16.095; RCW 26.16.100; RCW 26.16.090; RCW 64.28.040; RCW 6.13.020; RCW 26.16.210; RCW 11.02.070; RCW 11.04.250; RCW 26.16.230; RCW 11.07.010. Each row links the section it summarizes.

Questions people ask

More on how Washington property law shapes a title search: title research in Washington.