In re Estate of Borghi

141 Wn. App. 294, 169 P.3d 847, 2007 Wash. App. LEXIS 2867

 

RULE:

The character of property is established at acquisition. Property acquired before marriage is separate property. When it appears that property was once separate, it is presumed to maintain that character until there is some direct and positive evidence to the contrary.

A spouse's use of his or her separate funds to purchase property in the names of both spouses, absent any other explanation, permits a presumption that the purchase or transaction was intended as a gift to the community. There must be clear and convincing proof to overcome such a presumption.

FACTS:

Prior to her marriage to the husband, the wife entered into a real estate contract to purchase certain property. After the marriage, a statutory warranty deed was issued to both the husband and the wife. The wife died intestate. Her surviving heirs were her husband and a son from a previous marriage. The trial court ruled that the real property was the community property of the husband and wife. The son appealed, claiming that the real property was the wife's separate property such that the son would inherit an undivided one-half interest in the property. 

ISSUE:

Was real property acquired by a wife with her own separate funds before the marriage but later deeded in the names of both spouses and thus, presumed to be a gift to the community, the separate property of the wife?

ANSWER:

Yes; there was clear and convincing proof to overcome the presumption that the wife intended the real property to be a gift to the community.

CONCLUSION:

The court explained that while the evidence led to the conclusion that the wife intended the statutory warranty deed to reflect a gift of her separate property to the community, it was constrained by the holding in In re Estate of Deschamps to reach the opposite conclusion. The court reluctantly concluded that the real property was the wife's separate property under Wash. Rev. Code § 26.16.020.

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