Washington Community Property & Spousal Debt
- 6 min read
- Washington is one of 10 community property states.
- Debt created during marriage in Washington is presumed to be community debt.
- You may have liability for your spouse's pre-marital debt, but only under certain circumstances.
Learn if You Must Pay Your Spouse's Debts in Washington
Washington is a community property state. You may have pay your Washington spouse’s debt even if you did not know about it. Washington’s community property law for spousal debt has some twists and turns, so do not just assume you must pay your spouse’s debt. If you are married and reside in Washington, you need to understand if you have liability for your spouse’s debt.
This article focuses on spousal debt, which is one small part of Washington’s community property law. Read the state law at Chapter 26.16 RCW Rights And Liabilities – Community Property and the Washington State Bar Association’s Dissolution in Washington State (PDF) to learn more about Washington’s community property law.
|Community Property States|
Community Property at a Glance
In community property states, the presumption is wealth or debt created during the marriage is part of the marital community. Therefore, courts in community property states assume a debt incurred from the date of marriage to the date of divorce is a community debt that is to be divided equally between the spouses.
Many courts in community property states assume the rents, profits, and issues of separate property remain separate. The fruits of community property are community assets. If a spouse claims a certain property is separate, it is up to that spouse to prove the property was acquired with separate funds or separate credit.
By contrast, separate property is property acquired before marriage, and property acquired by a spouse during marriage through gift, inheritance, or an award for personal injury damages.
Washington Law & Community Property
In Washington, debts are either tortious (the result of a lawsuit) or contractual. One spouse is not liable for the separate debts of the other (RCW 26.16.200). However, Washington law allows community creditors to reach the the community property of both spouses and the separate property of the spouse who signed the contract.
In cases where a judgment-creditor wants to achieve a wage garnishment of the debtor, the judgment must occur within 3 years of the default. In Washington, if some part of community property is used to satisfy a separate debt, then the other spouse has a right to 1/2 of the debtor's community property. In a contract situation, the non-debtor spouse's separate property is always immune from a judgment-debtor's collections.
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For tort debt (debt not related to a contract) of one spouse, all community property is vulnerable if the tortfeasor (the spouse found liable for commiting an injury to another person) was "on community business" (Haley v. Highland, 960 P.2d 962 (Wash. Ct. App. 1998)). Tort debt can be satisfied by tortfeasor's separate property, too. Community property is also vulnerable for pre-marital tort debt (deElche v. Jacobsen, 622 P. 2d 835 (Wash. Supreme Court 1980)).
Consult with a Washington lawyer who has family law experience to learn more about Washington community property law. If you cannot afford a lawyer, contact Washington Advocate Resource Center or another Washington pro bono program to find low- and no-cost legal services.
|Washington Community Property Law at a Glance|
|Husband or wife liable for debts of other incurred before marriage?||Neither person in a marriage or state registered domestic partnership is liable for the debts or liabilities of the other incurred before the union.*|
|Husband or wife liable for debts of other incurred during marriage?||No separate debt, except a child support or maintenance obligation, may be the basis of a claim against the earnings and accumulations of either spouse or either domestic partner unless the same is reduced to judgment within 3 years of the union.*|
|When do spouses become subject to state community property laws?||When the spouses are married and domicile in the state.|
|Does the state recognize common law marriage?||No, but it recognizes a common law marriage legally established elsewhere.|
|Does the state recognize some from of domestic partnership as an alternative to marriage?||Yes.|
|Does a domestic partnership under state law create community property rights and obligations?||Yes.|
|When does the community property regime terminate (causing subsequently acquired assets or future income to no longer be characterized as community property)?||Change of domicile, death or a separation that is intended to be permanent.|
|How is post marital income generated from separate property (e.g., rents, dividends, interest) characterized?||Separate property unless derived from a spouse's labor or community property funds. If so, an allocation must be made.|
|How does the state characterize appreciation in the value of separate property?||Separate property unless derived from a spouse's labor or community property funds. If so, allocation or reimbursement issues must be dealt with.|
|How does the state characterize property taken by spouses under a deed reflecting that the property is held in joint tenancy?||Community property unless there is a written agreement between the spouses which clearly evidences the spouses' intent to hold the property in joint tenancy rather than as CP. Holding title in joint tenancy is not sufficient by itself to overcome CP presumption.|
|How does the state characterize property taken by spouses under a deed reflecting that the property is held in tenancy in common?||Community property unless there is clear and convincing evidence establishing the spouses' intent to hold the property in tenancy in common. Title in tenancy in common is not sufficient by itself to overcome CP presumption.|
|Does a deed taken in the name of one spouse as sole and separate property create separate property?||No. Title does not determine the character of the property. It is rebuttably presumed to be community property.|
|Does the state recognize pre or post marital property characterization agreements?||Yes.|
|What are the property characterization agreements called?||Separate property agreements.|
|Are property characterizations agreements required to be in writing?||An oral agreement will be recognized, but the claim of one will be strictly scrutinized.|
|Are property characterization agreements valid against creditors?||Not against existing creditors.|
|What property is available to satisfy a premarital federal tax obligation assessed against only one spouse?||50% of community property and all separate property of liable spouse.|
|What property is available to satisfy a post marital federal tax obligation assessed against only one spouse?||100% of community property and all separate property of liable spouse.|
|Washington Community Property law: RCW 26.16 RCW * RCW 26.16.200|
Washington Community Property Law. Source: IRS and Bills.com
Washington Doctrine of Necessaries
The doctrine of necessaries is a law giving creditors in some states a right to collect a certain type of debt from a debtor’s spouse or the parent of a minor child. Some states, including Washington, repealed their doctrine of necessaries laws.
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To learn more about Washington’s doctrine of necessaries rule, read the Bills.com article Doctrine of Necessaries Rules For All States.
Struggling with debt?
Mortgages, credit cards, student loans, personal loans, and auto loans are common types of debts. According to the NY Federal Reserve total household debt as of Q4 2022 was $16.91 trillion. Housing debt totaled $12.26 trillion and non-housing debt was $4.65 trillion.
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