Community Property Agreement vs. Will in Washington: What Does Each Do?

Many Washington couples have a one-page community property agreement in the same folder as their wills, signed years ago at the same appointment. Others have only one of the two and assume it does the work of both.

It does not. A community property agreement under RCW 26.16.120 is a contract between two spouses or registered domestic partners. In its common form it changes how the couple's property is classified while both are alive and then passes community property to the survivor at the first death, without probate. A will under chapter 11.12 RCW is one person's own set of instructions. It can be changed by that person alone, does nothing until death, and works through probate. For most couples the two are complements, not substitutes, and the trouble starts when one is asked to do the other's job. The site's general article on community property agreements in Washington explains how the agreement itself works. This article sets the two documents side by side.

How Is a Contract Different From a Will?

Start with who signs and who can undo it. RCW 26.16.120 allows both spouses, acting jointly, to make an agreement about the status or disposition of their community property, to take effect at the death of either. The agreement has to be signed, witnessed, acknowledged, and certified the way a deed to real estate is, and it can be altered or amended only in the same manner. It takes two people to make one and two people to change one.

A will is the opposite. Under RCW 11.12.020 it must be in writing, signed by the person making it, and attested by at least two competent witnesses. Under RCW 11.12.040 that person can revoke it by signing a later will or by physically destroying it with the intent to revoke. No one else's consent is needed, and a spouse does not even have to be told.

That difference decides real cases. In In re Estate of Bachmeier, 147 Wn.2d 60 (2002), a couple had signed a community property agreement in 1977. More than twenty years later they separated, and two days before she died the wife signed a will leaving her estate to her daughter and disinheriting her husband. The Washington Supreme Court held that the agreement still controlled. It could be rescinded by mutual assent or made inoperable by a final divorce decree, but one spouse's acts inconsistent with it did not rescind it, and the court refused to treat it as ended just because the marriage had broken down.

When Does Each One Act, and On What?

A will is silent during life. At death it governs the probate estate, which for a married person generally means that person's separate property and half of the community property. RCW 11.02.070 confirms the other half to the surviving spouse. A will works the same way at the first death or the second, and it can name anyone: a spouse, children, a charity, a trust, and backups for each.

A community property agreement can act at two different times. The common three-part form declares that everything the couple owns is community property, that everything they later acquire will be community property, and that all community property goes to the survivor when the first spouse dies. The first two declarations are written to operate from the day of signing. Only the third waits for a death.

The lifetime effect is easy to overlook. RCW 26.16.010 protects a spouse's separate property, such as a premarital house or an inheritance, from the other spouse's debts. Once an agreement reclassifies that property as community property, that protection no longer applies to it, which can expose it to community creditors who could not have reached it before. It can also be treated as community property if the marriage later ends in divorce.

It is also a mistake to assume that every agreement covers everything or always eliminates probate. The statute allows an agreement about the whole or any portion of the community property. What a particular agreement does depends on what it says and on which assets it reaches. And because the survivorship clause operates only at the first death, the agreement has nothing to say when the survivor dies.

What Can a Will Do That the Agreement Cannot?

Several things. A will names a personal representative, and under RCW 11.28.010 the court issues letters to the person the will appoints. A parent's will can nominate a guardian for minor children, and RCW 11.130.215 directs the court to appoint the parent's nominee unless that would be contrary to the child's best interest. An agreement between spouses does neither.

A will also handles everything after the first death and every contingency around it: who inherits when the surviving spouse dies, who takes if a child dies first, and what happens if both spouses die together or days apart. On that last point, chapter 11.05A RCW generally requires a person to outlive another by 120 hours to be treated as the survivor. A classic agreement names only the surviving spouse and offers no backup.

Finally, a will can create trusts, for a minor child, for a child from an earlier marriage, or to hold part of the estate for the surviving spouse in a way that uses the first spouse's estate tax exclusion. And it catches property the agreement does not cover.

What Can the Agreement Do That a Will Cannot?

The agreement's main advantage is speed at the first death. Property within it passes to the survivor by contract, so no probate is needed to transfer it. A will does not avoid probate. It is the document a probate carries out.

The second is the lifetime conversion described above, which a will cannot do because a will has no effect until death.

There is also a federal income tax point, and it belongs more to community property than to the agreement itself. Under 26 U.S.C. 1014(b)(6), the surviving spouse's half of community property can receive a new tax basis at the first death, along with the deceased spouse's half, if at least half of the community interest was includible in the deceased spouse's gross estate. An agreement can widen what qualifies by converting separate property into community property. Couples with only wills receive the same treatment for whatever is already community property. Whether the conversion helps or hurts depends on the assets, and it is worth reviewing with a tax advisor.

Which One Controls if They Conflict?

For property covered by the agreement, the agreement does. That is the lesson of Bachmeier, and the statutes point the same way. RCW 11.11.020 lets a person redirect certain nonprobate assets by specifically referring to them in a will, but RCW 11.11.010 excludes a right or interest passing under a community property agreement. One spouse's will cannot reach in and take back what the contract gives the survivor.

Wills signed by both spouses are another matter. In Higgins v. Stafford, 123 Wn.2d 160 (1994), a couple signed a community property agreement and, ten years later, mutual wills and a separate agreement that conflicted with it. The court held that the later documents showed a mutual intent to abandon the earlier agreement. So a pair of new wills might leave an old agreement fully in force, or might undo it, depending on what both spouses signed and what it shows. Couples who update one document and forget the other are leaving that question for a court.

How Do the Two Affect Washington Estate Tax?

For deaths on or after July 1, 2026, the Washington applicable exclusion amount under RCW 83.100.020 is $3,000,000. The date of death controls: for deaths from January 1 through June 30, 2026, it was $3,076,000. For deaths after 2026, check the exclusion applicable to the year of death because the statute provides for annual adjustments. Washington's estate tax also has no portability, which means a surviving spouse cannot claim a deceased spouse's unused exclusion.

That is where a stand-alone agreement can be costly. If everything passes outright to the survivor, the first spouse's exclusion may go unused, and the survivor's estate has only one exclusion to shelter the combined total. A will can direct part of the first estate into a trust designed to use that exclusion. Chapter 11.86 RCW offers a partial fallback: an interest passing under a community property agreement can be disclaimed, in writing and generally within nine months, and the disclaimed interest then passes as if the survivor had died first. That works as planned only if a will is waiting with the right provisions. The article on Washington's 2025 and 2026 estate tax changes covers the rates and thresholds.

Blended families face a related risk that has nothing to do with tax. Under a classic agreement the survivor owns everything outright and can leave it to anyone. A will with a trust can provide for a spouse and still protect children from an earlier relationship.

Do Creditors Get Treated Differently?

Neither document avoids debts. RCW 26.16.120 says an agreement does not take away from the rights of creditors, and RCW 11.18.200 generally makes the recipient of a nonprobate asset take it subject to the decedent's liabilities.

The difference is procedure. In a probate, the personal representative can publish notice to creditors, and under RCW 11.40.051 a creditor who could not reasonably be identified generally has four months from first publication to file a claim. If no notice is published, the period is 24 months from the date of death. When an agreement avoids probate, there is no personal representative to publish. Chapter 11.42 RCW fills the gap: under RCW 11.42.010, a person who receives substantially all of the decedent's assets can act as a notice agent and publish a nonprobate notice to creditors, with similar deadlines under RCW 11.42.050. The companion article on settling a loved one's debts without opening probate explains that process.

What Happens in a Separation or Divorce?

A final decree affects both documents. Under RCW 11.12.051, a decree of dissolution revokes will provisions in favor of the former spouse, and RCW 11.07.010 does the same for many nonprobate transfers. For the agreement itself, the Supreme Court in Bachmeier said a final divorce decree can make it inoperable.

Before the decree, the two behave very differently. A separated spouse can sign a new will the same afternoon. That spouse cannot cancel the agreement alone, and neither separating nor filing ends it. Bachmeier shows the result when someone dies in between.

What About Real Estate in Another State?

Real property is generally governed by the law of the state where it sits. A community property agreement is a creature of a Washington statute, so whether it will transfer title to a cabin or rental in another state without a court proceeding there depends on that state's law. A will may instead need to be presented in an ancillary probate in that state.

Make the Two Documents Work Together

A community property agreement and a will answer different questions, and a plan that relies on one to do the work of both usually has a gap. The Law Office of Chad Foster can review an existing agreement and wills together and help a couple decide whether to keep, revise, or rescind them. Call 425.785.8679 to talk with a Snohomish County estate planning attorney about how your documents fit.