During a Washington divorce, spouses can agree about how to divide their property and the judge can adopt that agreement in the divorce decree. If spouses cannot agree, the court can divide much of the property acquired during their marriage. Typically, inheritances are not subject to division except under certain circumstances.
Washington is one of the few community property states, which means Washington considers property acquired during a couple’s marriage to be community property owned jointly by the spouses. Community property includes each spouse’s paycheck, personal property purchased during the marriage and real estate purchased during the marriage; Washington courts can divide community property during a couple’s divorce. However, certain property is considered separate property, and as such, is not divisible by the court, though there is a presumption that assets acquired during a marriage are community property.
Certain items acquired during marriage -- and all property acquired before marriage -- are considered the separate property of the spouse who acquired them. Separate property includes assets acquired by gift and inheritance and profits and income from that separate property. For example, if a spouse inherits a house and rents it out instead of living in it, both the house and the rent money are considered separate property of the spouse who inherited it.
Separate property can lose its special character and become community property if it becomes commingled, or mixed, with community property. For example, if a spouse receives a monetary inheritance and deposits those funds into a joint account where the money is used to pay community bills, the court may determine the inheritance money lost its special character. When an inheritance is no longer separate property, it becomes divisible in the divorce.
Since the court presumes property is community property, a spouse who claims something is separate property has the burden to trace the property back to its origin and prove that it is still separate property. A spouse who asserts that inheritance proceeds were never community property has the burden to prove by “clear and convincing” evidence that the inheritance is separate property, and this burden of proof is more stringent than that of many states. If an inheritance is still in substantially the same form as it was when the spouse inherited it, tracing may be less difficult than it is when the property was sold to buy other property or mixed with community property.