Can a Community Property Agreement Avoid Probate in Washington?

Somewhere in a filing cabinet in Bothell or Everett sits a one-page document from 1993 titled "Community Property Agreement," signed by a couple who no longer remember signing it. It may quietly control everything they own. If you are that couple, or the adult child who just found that page while sorting a deceased parent's papers, the short answer is yes: a community property agreement can avoid probate at the first spouse's death, more cheaply and completely than almost anything else Washington offers. The longer answer is that it does several other things at the same time, and those are why I spend a fair amount of time helping people undo one.

For related help, see estate-planning help, power-of-attorney guide, and Washington probate guide.

What Is a Community Property Agreement?

A community property agreement is a contract between spouses, or between registered domestic partners, about how their property is characterized during life and where it goes at death. It is a creature of Washington law and barely exists anywhere else, which is why national estate planning content is silent on it.

The authority is RCW 26.16.120, titled "Agreements as to status." The statute allows both spouses or both domestic partners to jointly enter into "any agreement concerning the status or disposition of the whole or any portion of the community property, then owned by them or afterwards to be acquired, to take effect upon the death of either." Two phrases do most of the work. "Status" is what lets the agreement declare property to be community property. "Afterwards to be acquired" is what lets it reach forward and capture assets the couple does not own yet.

The formalities are real but modest. The statute requires an instrument in writing under the parties' hands and seals, "witnessed, acknowledged and certified in the same manner as deeds to real estate are required to be," and it can later be altered or amended the same way. In practice, a signed and notarized document. The statute also preserves outside limits: the agreement does not derogate from the rights of creditors, the superior court retains power to set it aside for fraud or on other recognized equitable grounds, and it does not override the slayer and abuser rules in chapter 11.84 RCW.

What Do the Three Prongs Actually Say?

The standard three-prong form does three things in about four sentences. All property the couple currently owns is community property. All property either of them acquires in the future is community property. And upon the death of either spouse, all of it immediately vests in the survivor.

That third prong is the probate-avoidance engine, and the mechanism matters. The agreement is a contract, not a testamentary document. Washington's Court of Appeals put it plainly in In re Estate of Catto, 88 Wn. App. 522, 944 P.2d 1052 (1997), describing a community property agreement as an enforceable contract not governed by the laws relating to wills, one that becomes completely executed when one of the parties dies, vesting title in the survivor. The same opinion notes the consequence people miss: property covered by the agreement cannot be devised or bequeathed by the will of either spouse.

How Does It Avoid Probate at the First Death?

Because title vests by contract at the moment of death, there is nothing for a probate court to transfer. Washington's probate code recognizes this directly. RCW 11.02.005 defines a "nonprobate asset" as a right or interest that passes at death under a written instrument other than the person's will, and it lists a community property agreement alongside joint tenancies, payable-on-death accounts, and transfer on death deeds.

What the survivor does instead of opening a probate is mostly paperwork. For real property, that means recording the original agreement together with a certified copy of the death certificate in the county where the land sits, so the chain of title reflects the change. For a home in Lynnwood, Marysville, or Monroe, that is the Snohomish County Auditor. For financial accounts, it means presenting the agreement and the death certificate to each institution and asking it to retitle. Some banks handle this in a week. Others, particularly national institutions unfamiliar with a Washington-only instrument, will ask for letters testamentary that do not exist. That friction is measured in phone calls rather than the months and filing fees a full probate takes, and my article on how much probate costs in Washington lays out the numbers.

One caution: avoiding probate is not avoiding obligations. The statute expressly preserves creditor rights, and a taxable estate still owes a Washington estate tax return regardless of how the property passed.

What Happens at the Second Death?

Nothing. That is the flaw nobody mentions when the agreement is signed.

The agreement is about the death of the first spouse. Once it has operated, it is spent. The survivor owns everything outright in their sole name, with no spouse left to take by contract. When the survivor dies, whatever they still own passes by their will, by beneficiary designation, or by intestacy, and if real property or meaningful account value sits in their name alone, a probate is very likely. The honest description is not that a community property agreement avoids probate. It eliminates one probate and postpones the other.

Why Is It Dangerous for a Blended Family?

This is the sharpest edge, and the one that produces litigation. The agreement moves everything to the surviving spouse outright, with no strings. The survivor is then free to sign a new will, add a new spouse, retitle accounts, sell the house, and leave the entire combined estate to their own children, a new partner, or a charity. The deceased spouse's children from a prior marriage have no enforceable claim on any of it, because their parent's property was never theirs to give: it vested in the survivor by contract and, as Catto notes, could not be devised by will in the first place.

I see this most often in second marriages where each spouse arrived with children and assets and both genuinely intended their own children to inherit their own property. An agreement signed years earlier quietly defeats that intention, without anyone noticing until the first funeral.

Can a Community Property Agreement Conflict With a Will or a Trust?

Frequently. A couple signs a community property agreement in one decade, then signs wills or funds a revocable living trust years later that says something entirely different. Because the agreement is a contract operating outside the will, the later document does not automatically displace it.

The Washington Supreme Court addressed how such an agreement can be undone in Higgins v. Stafford, 123 Wn.2d 160, 866 P.2d 31 (1994), holding that a community property agreement may be rescinded or abandoned by mutual intent clearly demonstrated, that mutual acts having the effect of rescission suffice without an express written revocation, and that later mutual wills can control over a prior agreement where that mutual intent is adequately established. The critical word is mutual. Unilateral acts inconsistent with the agreement are not enough.

That is a rule about how litigation comes out, not a planning strategy. If you have both an agreement and a trust, the right move is to revoke the agreement jointly and in writing, or to keep it deliberately and coordinate the two. Leaving both in the drawer and hoping the newer one governs is how estates end up in a TEDRA petition.

What Does It Do to Separate Property and to a Divorce?

Because the agreement speaks to the status of property, the standard form converts everything to community property, including assets that would otherwise be firmly separate. Under RCW 26.16.010, property a spouse owned before marriage, and property acquired afterward by gift, bequest, devise, descent, or inheritance, is that spouse's separate property. The three-prong agreement overrides that default by contract. The premarital house, the inheritance from your mother, the account you funded before you met: all recharacterized.

In a dissolution, characterization is not the whole game. RCW 26.09.080 directs the court to make a just and equitable disposition of the property and liabilities of the parties, "either community or separate," weighing the nature and extent of both estates, the duration of the marriage, and each spouse's economic circumstances. A Washington judge can reach separate property regardless. But characterization is a listed factor that carries weight, and a signed agreement declaring your inheritance to be community property is a difficult document to argue around.

The bigger risk is timing. In Catto, a spouse filed for dissolution and executed a new will, then died before the divorce was finished. The agreement still controlled, because the couple had never mutually rescinded it. Filing for divorce does not, by itself, undo it. If you are separating and an agreement exists, revoking it jointly and in writing belongs near the top of the list, and a postnuptial agreement is often what replaces it with something both spouses actually want.

How Does It Affect Washington Estate Tax?

This is where a well-meaning agreement can cost a family real money. Washington's estate tax exclusion is $3 million for deaths on or after July 1, 2026, and the top rate returned to 20 percent on that date under ESB 6347, after running as high as 35 percent for deaths from July 1, 2025 through June 30, 2026. Date of death controls which regime applies, and the exclusion figure moves with it: a death in the first half of 2026 carried a $3,076,000 exclusion instead.

RCW 83.100.020 sets that exclusion per decedent, with no portability mechanism. The federal exclusion can be carried over to a surviving spouse; Washington's cannot. When a community property agreement sends everything to the survivor outright, the first spouse's Washington exclusion evaporates. A couple with a $5 million estate that could have sheltered the first spouse's share in a credit shelter trust instead concentrates everything in one survivor, and Washington taxes the excess at the second death. That is the reason credit shelter planning still matters here even for families well under the federal threshold.

There is a genuine benefit on the other side of the ledger. Under 26 U.S.C. § 1014(b)(6), when property is community property the survivor's one-half share also takes a new basis at the first death, so the whole asset steps up rather than half. For a couple holding long-appreciated Snohomish County real estate with no state estate tax exposure, that double step-up is a real income tax win. A community property agreement is therefore a basis advantage and an estate tax disadvantage at once, and which dominates depends on the size of the estate.

Long-term care adds another layer. Concentrating all assets in one spouse rarely helps a Medicaid analysis, and an agreement that automatically recharacterizes and consolidates property can complicate spousal resource planning that depends on keeping certain assets separate. That analysis is worth running before a health crisis rather than during one.

Community Property Agreement, Will, TOD Deed, or Trust?

A will directs where property goes but does not avoid probate; it is the instrument that opens one. A community property agreement avoids probate at the first death only, covers everything at once, and gives the survivor unrestricted control. A transfer on death deed under chapter 64.80 RCW handles a single parcel of real property and stays revocable during the owner's life under RCW 64.80.030, which makes it precise but narrow. A revocable living trust costs more upfront and requires funding, but it covers all asset types, controls the second death as well as the first, and can hold a deceased spouse's share for children rather than handing it to a survivor outright.

So a community property agreement fits a first marriage with shared children or none, an estate comfortably under the Washington exclusion, and a mutual intention that everything go to the other spouse. It fits badly in a blended family, an estate near or above $3 million, a marriage where either spouse brought significant separate property, a household that already has a trust, or a marriage that is in trouble.

If one of these agreements is sitting in your drawer, or you are about to sign one because it is cheap, it is worth thirty minutes to find out which category you are in. I handle estate planning and family law from Bothell for clients throughout Snohomish County, and you can reach the Law Office of Chad Foster at 425.785.8679.