The Washington Community Property Agreement and What It Does Not Do

The community property agreement is Washington’s distinctive contribution to estate planning, and for a particular kind of couple it is close to perfect. It is short, it costs almost nothing, and executed properly under RCW 26.16.120 it converts the couple’s property to community property and vests the whole of it in the survivor at the first death, without probate.

For a first marriage, with shared children, modest assets, and no state estate tax exposure, it is hard to beat. The problem is that it gets used well outside that description, often by couples who signed one decades ago and have not thought about it since, and outside that description it does real damage.

It only solves the first death

A community property agreement moves everything to the surviving spouse. It says nothing about what happens when the survivor dies. If the couple has no other documents, the survivor now owns the entire estate outright and it will pass under their will, or under Washington’s intestacy statute if there is none.

That is fine when the couple’s wishes are identical and remain so. It is not fine when the survivor remarries, is influenced by one child more than another, loses capacity, or simply changes their mind. The first spouse to die has, by signing the agreement, given up any ability to direct where the property goes after the survivor is finished with it.

It is dangerous in a blended family

This is the failure that produces litigation. A husband with children from a first marriage signs a community property agreement with his second wife. He dies. Everything — including property he brought into the marriage and intended for his own children — vests in his widow. His will leaving half to his children is irrelevant, because there is nothing left in his estate for the will to operate on.

His children will be told, correctly, that their father signed a document that did this. Whether they accept that explanation is another matter, and Washington’s TEDRA procedures under chapter 11.96A RCW give them a well-worn route to contest it.

It can waste the Washington estate tax exclusion

Washington has its own estate tax, with an exclusion far below the federal exemption, and — critically — Washington has no portability. A married couple in a state with portability can let everything pass to the survivor and still use both exclusions, because the unused amount carries over. In Washington it does not. An exclusion not used at the first death is simply gone.

A community property agreement passing the entire estate to the survivor is therefore the most efficient possible way to waste it. For a couple whose combined estate is anywhere near the Washington threshold, the cost of that mistake is measured in six figures, and it is entirely avoidable with a credit shelter structure or a Washington-only QTIP election under RCW 83.100.047.

The Washington threshold also moved in 2026, and indexing arrangements changed with it. This is not a figure to carry in your head from something you read a few years ago.

It does nothing for incapacity, or for a simultaneous death

A community property agreement operates at death. It gives nobody authority to act while both spouses are alive and one of them can no longer manage their affairs. That is the work of a durable power of attorney and a health care directive, and a couple relying solely on a community property agreement has no incapacity plan at all.

Nor does it help if both spouses die together, or if the survivor dies shortly afterwards without having made new arrangements. And it makes no provision for a beneficiary who should not inherit outright — a minor, someone receiving needs-based benefits, someone with a creditor problem.

When it still makes sense

None of this means the agreement is a bad tool. It means it is a specific one. It works well for a first marriage with common children, where the combined estate is comfortably below the Washington threshold, where both spouses genuinely want the survivor to have everything outright, and where it sits alongside wills, powers of attorney and health care directives rather than instead of them.

For everyone else — blended families, estates near the threshold, couples with property in more than one state, couples who want any control over the second death — a revocable living trust does the same probate avoidance while answering the questions the agreement cannot.

The Washington estate planning page goes through both routes.

What a Washington couple should actually have

The community property agreement question sits inside a larger one, which is what a complete plan looks like in this state. For most Washington couples that is four things, and the agreement is at most one of them.

A will naming a personal representative and, importantly for Washington, granting nonintervention powers under chapter 11.68 RCW. Washington’s nonintervention administration is the local equivalent of Texas independent administration: once the court finds the estate solvent and grants the powers, the personal representative administers without further supervision. It is the reason Washington probate is not the ordeal it is in some states, and it depends on the will asking for it.

A durable power of attorney and a health care directive, because neither a will nor a community property agreement does anything while both spouses are alive. Without them, a family facing incapacity needs a guardianship, and Washington’s guardianship law is considerably more demanding since the Uniform Guardianship, Conservatorship and Other Protective Arrangements Act took effect for adults in 2022.

And, where the estate approaches the Washington threshold or the family is blended, a trust — either a revocable living trust or credit shelter provisions inside the wills — to capture the exclusion at the first death that portability will not preserve.

Property in more than one state

A Washington community property agreement addresses the couple’s property, but the state where land sits controls how that land transfers. A Washington couple with a condominium in Arizona, a cabin in Idaho, or a rental in California has real property that may require an ancillary probate in that state regardless of what the agreement says, and Idaho in particular offers no transfer on death deed to route around it.

This is the single most common reason a Washington couple who would otherwise be well served by a community property agreement ends up with a trust instead. A trust holds title to property in every state at once, and collapses two or three probates into none.

Frequently Asked Questions

We signed one years ago. Is it still in force?

Almost certainly, unless it was revoked in the manner the agreement or the statute requires. That is the point worth acting on: a community property agreement signed in a first marriage does not quietly expire because circumstances changed. It should be reviewed after a remarriage, a significant change in assets, or the birth of children from a different relationship.

Can we revoke it?

Generally yes, by mutual agreement, and sometimes unilaterally depending on the terms and the circumstances. The mechanics matter and should be followed carefully, because a revocation that does not comply leaves the original agreement operating exactly as before.

Does it avoid the Washington estate tax?

No. It avoids probate. The estate tax is a separate question, and because Washington has no portability, an agreement that passes everything to the survivor can increase the total tax the couple pays rather than reduce it.

Talk it through

If there is a community property agreement in your file and a blended family, a larger estate, or a second marriage in the picture, that combination is worth reviewing. The Washington contact page has the direct line.