Boise Estate Planning and Community Property

By Lane V. Erickson, Idaho Estate Planning Attorney

The focus or goal of our team of premier estate planning attorneys is to help you with your estate planning. Our team of attorneys have helped clients for over 70 years in understanding and customizing their own specific estate plans. We want to meet your needs. Additionally, we want to help you in reaching your goal of ensuring that your intent and wishes are carried out after you pass away. This is particularly true when it comes to dealing with community property and separate property as part of your estate. Because these types of property are different, they have to be treated differently in your estate plan.

Our team has experience in working with numerous clients in the creation of customized estate plans. In doing this, we have helped individuals and couples work through and deal with both community property and separate property as part of their individualized estate plans. We are confident that we have the experience, skill, and expertise to answer all of your questions and to help you accomplish what you want. Our Boise estate planning team of lawyers includes partners Randy Budge and Lane Erickson and attorney Dave Bagley. These attorneys create an award winning Boise estate planning team that continually provide each client with decades of experience.

If you are married, and living in Idaho, then the issue of community property will definitely be part of your estate planning. To help you get started, we've created this webpage that answers three specific questions about community property and how it may have an impact upon your own personal estate planning.

The number one question that all clients ask that live in Idaho is what exactly community property is. From the beginning, Idaho has been a community property State, and because of this, there is a presumption that all property that is owned by spouses is owned jointly as part of community property. In other words, there is a legal presumption that everything that is owned in a marriage is owned by both the husband and the wife jointly and equally.

To clarify this Idaho has created specific statutes providing definitions of community property. These statutes are very specific about what is and what is not considered to be community property. Additionally, these statutes also described the fact that even separately owned property can produce income. Income generated during a marriage is always presumed to be community property regardless of its source. So as a result, while the property itself may remain separate, the income that it produces will likely be considered community property. The reason behind these statutes is to put each spouse in a marriage on the same footing in the ownership of property held in that marriage.

The next question asked by most clients is that with this presumption of community property under Idaho statutes, is it possible to own separate property even while a person is married? The answer is yes. Separate property could be owned a number of different ways. First of all it could be owned as a gift. In other words, one spouse could provide a gift to another spouse of some item of property, such as a wedding ring, or a vehicle or an investment. When this happens, that item of property then becomes the separate property of the recipient of the gift.

Additionally, if a spouse receives an inheritance from a deceased parent or some other persons, whatever is received would also be considered the separate property of that spouse. However, without getting too complex, it is possible for separate property to then be transmuted into community property if proper steps are not taken to keep it separated during the course of the marriage. The purpose of this article is not to get into the complexities of how this can occur. Just know that it can happen.

An additional way that property can become separate property is through a property separation agreement. This is a type of agreement that is signed by both spouses that specifically describes all of the property that is owned by each of them separately and also that is owned by them as community property. There are several formalities that have to be included in this type of agreement in order for it to be a valid separation agreement of property. When these formalities are met, then all the property listed on that agreement as separate property will be legally owned by an individual spouse and the other spouse will have no rights or interests to it.

The final question that we will address in this article is how the classification of property affects a person's estate planning. The specific reason why each individual in a marriage will want to know whether property is community property or separate property is because they only have a right to give away either as a gift while they are alive, or as a gift through their last will and testament, property that they personally own. As a result, if a husband and wife jointly own a house as community property, one of the spouses cannot give the entire house away through their last will and testament. Rather, that spouse will only be able to give the ownership interest they have in community property to other individuals without affecting the ownership interest of the surviving spouse in that same community property.

By understanding and knowing whether property is community property, or whether property is separate property, an individual has the ability to then create an effective last will and testament as part of their estate planning. This last will and testament will then have the power and ability to give away items of property that the individual truly does have an ownership interest in.

We have assisted numerous clients in distinguishing between community property and separate property as they have completed their own personalized estate plan. With our experience, we are confident that we can help you too.

Our team of Boise lawyers can help you with any of your estate planning needs if your spouse has passed away. Whether you are seeking to create or review an estate plan for yourself or would like to help a loved one, we are available to discuss your options and answer your questions at an initial consultation. Call us toll free at 877.232.6101 or 208.232.6101 for a consultation. You can also email us directly at lve@racinelaw.net. We will answer your questions and help you solve your Boise Estate Planning problems.