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Community Property and Idaho Estate Planning

Estate planning is what we do! For over 70 years we have assisted our clients in preparing their customized Idaho estate planning to meet their own specific needs. With Idaho being a community property state we assist our clients in preparing estate planning that takes community property into consideration. Our goal is to make sure that your intent and whishes are accomplished.

Our team of Idaho estate planning attorneys has worked with numerous clients in making an estate plan for them that deals with both community property and separate property. We have the experience and expertise to answer your questions and help you in completing your personal estate plan as well. Our Idaho estate planning team of lawyers includes partners Randy Budge and Lane Erickson and attorneys Nate Palmer and Dave Bagley. These attorneys create our award winning Idaho estate planning team and provide our clients with decades of experience.

When we meet with our clients and we begin discussing estate planning, inevitably questions concerning community property and separate property come up. We work with our clients to understand how these types of property can affect their estate planning. To help you get started in creating your own customized estate plan here are three questions that will help you.

What is Community Property?

The first question that most people want to understand is what exactly is community property? Because Idaho is a community property state, there is a law that presumes when you are married that all property that you have in the marriage is owned jointly by both you and your spouse. Community property is simply that, property that is owned jointly and equally by both the husband and the wife. Community property can include homes and real estate, vehicles, bank accounts, tangible personal property, and other tangible and intangible assets as well.

Idaho has specific statutes that provide definitions of what community property is and what it is not. Additionally, these statutes identify what happens when property owned in a marriage produces income. Further these statutes are specific about how property that is separate can become community property and how community property can become separate property. The purpose of these statutes is to put each spouse in a marriage on equal footing when it comes to the assets that are owned during the marriage.

What is Separate Property?

The next question that is usually asked by clients wanting assistance with their estate planning is what is separate property? While there is a presumption in Idaho about community property, the same does not exist for separate property. According to Idaho’s statutes, any property that a spouse brings into the marriage is considered separate property. Additionally any inheritance that a spouse receives even if received when married is considered the separate property of the spouse that receives it. Furthermore, any gifts that are given from one spouse to the other during the marriage become separate property of the spouse that receives the gift.

Another way that property can become separate is through a marital property agreement. Spouses during their marriage have the option and opportunity in Idaho to sign a marital property agreement. This agreement provides specific descriptions of property that are owned separately by each spouse. This agreement is signed by both spouses so that each spouse can specifically acknowledge and agree that the property that is listed is separate and belongs only to the spouse who is identified as the owner. Finally, this agreement is also recorded in the county where any real property such as land or a home is owned that is the separate property of either spouse. By doing this, both spouses put the world on notice that the property listed in the agreement is the separate property of each spouse.

How Does This Affect My Last Will and Testament?

The most important question is why is any of this important? The reason why a spouse will want to know whether the property they own is community property or separate property is because it affects their ability to give that same property away to someone else after they die. In other words, you can only give away what you personally own.

Most individuals use a last will and testament as a way of giving their property away to others after they die. A last will and testament can be used to give away gifts of land and real estate, money, tangible personal property, and other valuable asset. However, regardless of what a last will and testament says, it can only give away property that is owned by the person who died. As a result, if the property that is listed in the last will and testament is community property, the last will and testament only has the ability to give away the portions of community property that were owned by the person who died and nothing more, regardless of what is said in the last will and testament.

Alternatively, any separate property that is listed in a last will and testament can be given wholly and completely by the spouse that owns it, even if they are giving the property away to someone other than their spouse. Separate property does not have an ownership interest other than in the person who died. For this reason, even if a spouse disagrees with what is listed in a last will and testament, they cannot change any gifts of separate property that are given by the person who died.

Enlist an Idaho Estate Planning Attorney to Help You

Our team of Idaho lawyers can help you with any of your estate planning needs including determining whether property you own is community property or separate property. We can then help you customize your own estate planning. 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 We will answer your questions and help you solve your Idaho Estate Planning problems.

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