Can My Spouse Disinherit Me by Putting Everything in a Trust?

You find paperwork for a living trust you were never told about, or your spouse mentions that everything is going into a trust for the kids from a first marriage. The fear is that a trust is a legal way to leave a spouse with nothing.

In Washington the answer is not everything, but possibly more than you expect. A trust cannot take your half of the community property, because that half was never your spouse's to give away. RCW 26.16.030 limits what one spouse can do with community property, and RCW 11.02.070 confirms one half of it to the surviving spouse at death. Your spouse's own half, and all of your spouse's separate property, are a different story. Washington has no elective share law that guarantees a surviving spouse a set percentage, so your protection is community property law plus a few narrower safety nets.

What the Revocable Trust Statutes Say

Living trusts are governed by chapter 11.103 RCW. RCW 11.103.040 says that while the person who created a revocable trust is alive, the rights of the beneficiaries are subject to that person's control and the trustee's duties are owed exclusively to that person. A trust that is your spouse's alone can be rewritten without your input.

That chapter does not change who owns what. For a trust created or funded by both spouses, RCW 11.103.030 says the character of community property or separate property is unaffected by its transfer to and from a revocable trust. Unless the trust agreement says otherwise, either spouse can revoke a joint trust as to its community property, but amending it takes both, and the trustee has to promptly notify the other spouse of a revocation.

Your Half of the Community Property Is Yours

Community property is, broadly, what either of you earned or acquired during the marriage. RCW 26.16.030 lets either spouse manage it, with exceptions. Neither spouse may give away community property without the express or implied consent of the other. Neither may sell, convey, or encumber community real estate unless the other spouse joins in the deed. And neither may leave more than one half of the community property by will.

A trust is not a way around those limits. A deed moving a community property home into one spouse's trust needs both signatures. At death, RCW 11.02.070 confirms half of the community property to the survivor and leaves only the other half for the deceased spouse to direct. The article on disinheriting family members covers the same limit for wills.

The practical warning is about your own signature. Consent, a deed you joined in, or an agreement changing the character of property can turn "ours" into "his" or "hers." A prenuptial agreement can do the same, as explained in how prenups affect inheritance rights.

Separate Property Can Go to Someone Else

Separate property is what a spouse owned before the marriage or received afterward by gift or inheritance. Under RCW 26.16.010, a spouse can manage, sell, or leave that property by will without the other spouse joining, as fully as if unmarried. Placing it in a trust for someone else is within that power.

This is where national articles mislead Washington readers. Most states that do not use community property give a surviving spouse an "elective share," a right to claim a fixed fraction of the estate no matter what the will or trust says. Washington has no such statute. Title 11 RCW, the state's probate and trust law, contains no elective share, and RCW 11.04.060 abolished the older dower and curtesy rights. If most of the wealth in your marriage is your spouse's separate property, a trust can lawfully send it elsewhere.

Whether property is truly separate is often the real fight after years of mixed accounts, a question covered in gifts and inheritance as separate property.

The Safety Nets That Remain

The first is the family award under chapter 11.54 RCW. RCW 11.54.010 allows a surviving spouse to petition for an award, which can come from the decedent's separate property or the community property but only from property exempt from attachment, execution, and forced sale. The award is not automatic: the court decides whether to grant one and how much is fair. RCW 11.54.001 says the chapter applies to both probate and nonprobate assets, so property in a trust is not automatically out of reach. Under RCW 11.54.020 the basic award has a floor that starts at $125,000 and is adjusted each year for inflation, and it can be higher based on the value of exempt property such as the homestead. RCW 11.54.050 lets the court reduce the award when the spouse receives other property because of the death or when the award would cut into what dependent children receive. RCW 11.54.015 sets the filing deadline: generally eighteen months after the death if a personal representative was appointed or a notice agent filed within the first twelve months, sooner if all estate proceedings have ended, and never later than six years.

The second is the omitted spouse rule in RCW 11.12.095, which is narrower than people hope. If a will was signed before the marriage and fails to name or provide for the spouse, the spouse receives the share he or she would have received had there been no will, unless the omission appears intentional or the court finds a smaller share fits the decedent's intent. The statute speaks only of wills, not trusts, and the share it creates is satisfied by reducing the gifts made in the will.

The third applies to couples who built their wealth in another state. Under RCW 26.16.220 and RCW 26.16.230, property acquired elsewhere that would have been community property if acquired here is "quasi-community property," and half belongs to the surviving spouse. RCW 26.16.240 reaches certain transfers of that property made without the survivor's consent within three years of death, including one where the deceased spouse kept a power to revoke, and lets the survivor require the recipient to restore one half. The claim must be made within the period for filing creditor claims against the estate.

A Worked Example

Karen and Bill have been married twenty years and live in Mill Creek. With their wages they bought a home and built a brokerage account. Bill also inherited a cabin and kept it in his own name. He signs a revocable trust naming his two children from his first marriage to receive everything at his death, and he transfers the brokerage account and the cabin to it.

When Bill dies, the cabin, his separate property, goes to his children. The brokerage account is community property. Bill alone signed the trust, so the character rule in RCW 11.103.030 for jointly funded trusts does not apply directly, but retitling the account did not make it his separate property, and Karen never consented to give away her interest. Under RCW 26.16.030 and RCW 11.02.070, she has a strong claim that half of the account is hers regardless of what the trust says, and only Bill's half should pass to his children. If the trustee disagrees, she may have to ask the court to confirm her half. The home never reached the trust because Karen did not join in a deed. Her half remains hers, and Bill's half passes under his will or, without one, by intestacy. If that leaves Karen with little, she can petition for an award under chapter 11.54 RCW.

Find Out Where You Stand

Sorting community from separate property is far easier while both spouses are living than after a death. If you are in a second marriage, a blended family, or a marriage where one spouse brought most of the assets, the Law Office of Chad Foster can review the documents and explain your position. Call 425.785.8679 to talk with a Snohomish County estate planning attorney.