Probate in Washington

Chapter 5: The Unmarried Couple

Hoa and Al were married forever. At least, that’s what everyone thought. They started out young together, struggling to start their business together. They saved their earnings and eventually, they owned several businesses which they managed together.  They had children together, wore wedding rings and introduced themselves as Mr. and Mrs. They’d been married in their house of worship, as their culture required, right at the start of their union, but didn’t bother to file the state marriage certificate after the ceremony. They weren’t married in the eyes of the State, although they were certainly married in the eyes of their religion, family and friends. In their culture, the man owned everything in his name, so despite all her hard work and all her years of devotion to the business, the wife didn’t own any of it.

Al died in a terrible car wreck at age 40.  There was no Will. The statute giving 50% to an unnamed spouse didn’t apply to Hoa, like it had for Maryanne. Hoa also had small children and less income because she had to hire someone to do the work Al had done. She didn’t own any of the businesses since everything was in Al’s name. Like Maryanne, she was going to have to deal with a Guardian ad Litem to approve her children’s share. And unless we acted, her children’s share was going to be everything. 

Hoa had only one chance of getting anything for herself, which her attorneys helped her do. There is no statute or law that gives a person the right to the assets of someone she had never married. But over the years, many partners have appealed to the Court, claiming that they deserved “equity”. In plain English, this means that it just isn’t fair that she lived with him, they worked together for common goals, they raised children together, saved what they earned, and had joint accounts.

They had made an attempt to marry, so in Hoa’s argument, they were as good as married. What’s a piece of paper? Unfortunately, that paper was pretty important. But in Hoa’s case, the Court would agree with her. Al and Hoa are what we call “committed domestic partners”. What they’d earned together would be treated “as though it was Community Property”, and so she could make a claim for her half of what they’d accumulated together. She would get her half, but not the Homestead Award because that only goes to a spouse. However, the children could get the Homestead Award, before any creditors were paid. It would be put into a blocked account or a trust for them. She could ask for the Family Allowance in addition. The kids would own half of the businesses and she would own half.

We’ve had other cases like this one, but they didn’t always go so smoothly. Sometimes there is an objection to the claim that they were committed domestic partners. Imagine different facts for these unmarried couples. What if they’d only been together two years, or five years, or ten years? What if they hadn’t had any children together, or he had children and she quit her job to help raise them? What if they’d been living together since college, he’d supported her through dental school, and she died two years after her practice started making money?  What if they were same sex committed domestic partners?  You can imagine that every case is different. These are the types of cases that take a long time, and cost lots of money. Washington has a specific court procedure for challenges in this type of case. TEDRA, the Trust and Estate Dispute Resolution Act, allows for a lawsuit encompassing the probate case. It’s fairly swift, and always expensive. If we are lucky, we can get problems resolved in the mediation that the Court requires. If not, we go forward to trial. But in the end, the people who loved our deceased person will likely never speak to each other again. The goal of TEDRA is to urge people to negotiate. If not, they are guided by strict rules about their litigation.