Idaho Wills & Community Property

by Erika Johansen
Not all community property may be left by a will.

Not all community property may be left by a will.

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In an Idaho divorce, property is divided based on the community property system, in which each spouse gets half of the marital property. A spouse can leave some of his property by will, but other factors may come into play. For specific questions about Idaho law, seek professional advice.

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Idaho Community Property

Idaho law follows the community property system. When spouses acquire property during marriage, that property is considered jointly owned "community" property. All non-community property, including gifts to a single spouse, is "separate" property, owned by the spouse who bought or received it. Divorcing spouses may come to an agreement to divide the community property as they choose, but if there is no agreement, Idaho courts will typically divide the community property 50/50 between the spouses.

Death Without a Will

When a spouse dies in Idaho without a will that describes what should be done with her 50 percent share of the community property, the state's Uniform Probate Code provides that her 50 percent becomes the property of the surviving spouse. The surviving spouse also retains his own 50 percent share of the community property. Therefore, unless the deceased spouse left a will disposing of her community property in a different manner, the surviving spouse will effectively own 100 percent of the community property. The surviving spouse is also first in line in the order of inheritance, with the right to inherit any of the deceased spouse's separate property that was not left by will or other instrument.

Willing Community Property

If one spouse has left a valid will, the will controls the disposition of his property. However, the spouse only has the right to will away his own separate property and his 50 percent share of the community property, as the other 50 percent of community property is the property of his surviving spouse. Should the will try to grant more than the deceased spouse's share of community property, the probate court will likely enforce the will in a manner that protects the surviving spouse's 50 percent share.

Quasi-Community Property

Often, spouses will move from one state to another, creating the issue of "quasi-community property." Quasi-community property is property spouses acquired in a non-community property state that would be considered community property had it been acquired in Idaho. If the married couple acquired most of their property out-of-state, this situation can result in the surviving spouse being deprived of a considerable portion of community property. Idaho law deals with this problem by granting a surviving spouse the right to one-half of quasi-community property as well. The other half belongs to the deceased spouse and is disbursed according to his will or Idaho's intestate succession laws.