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A Will and Community Property

By Lane V. Erickson, Attorney

Many of my clients who are married, often wonder what property they will actually be able to give away in their Will (last will and testament) to the people they choose when they die. The reason they ask this question is because they recognize that Idaho is a community property state but they don’t really understand what this means. Here are a few things you need to know about your Will and the property you can give away in Idaho.

In Idaho all property acquired after marriage by either the husband or wife is presumed to be community property. Idaho Code § 32-906(1). The presumption is rebuttable but the party asserting that property is not community bears the burden of proving that the property is separate with reasonably certainty and particularity. Matter of Freeburn’s Estate, 97 Idaho 845 (1976). However, in Idaho all property of either the husband or the wife owned by him or her before marriage, and that acquired afterward by either gift, bequest, devise or descent, or that which either he or she acquires with the proceeds of his or her separate property, by way of moneys or other property, shall remain his or her sole and separate property. Idaho Code § 32-903. The income of all property, separate or community, is community property. Idaho Code § 32-906(1). Property conveyed by one spouse to the other shall be presumed to be the sole and separate property of the recipient. Idaho Code § 32-906(2).

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 share or portion of the community property. This is presumed to be a 50% interest unless there is evidence showing that the property was separately owned by the decedent. If a person’s will attempts to give away more than the deceased spouse’s share of community property, a probate court will likely only enforce the Will to the extent of the decedent’s interest in community property.

Here is a practical example of how this works. Suppose you have a husband and wife who own a house jointly. Under the community property laws this means that they each own a 50% interest in the home. When either spouse passes away they can use their Will to give away their 50% portion of the ownership of the home to whoever they want.

Our firm has extensive experience in dealing with community property questions when a person dies. If you have questions about how Idaho’s community property laws affect your ability to give away property, we can help. Call us toll free at 877-232-6101 or 208-232-6101 for a consultation with Lane Erickson and the Racine Olson team of Estate Planning attorneys in Idaho. You can also email Lane Erickson directly at We will answer your Idaho Estate Planning questions and will help you solve your Idaho Estate Planning problems.

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