Community Property and Estate Planning

By Lane V. Erickson, Idaho Estate Planning Attorney

Estate planning is about so much more than simply deciding who will get all of your money, property, and other assets after you die. Estate planning is about thinking through and deliberately planning for the fullest life possible while you are alive.

At the heart of Idaho estate planning is the application of Idaho’s community property laws. The purpose of this article is to describe what community property is, and how your estate-planning can be affected by these laws. We are providing this information so you can make educated decisions about the types and kinds of things you want to accomplish through your estate plan.

The qualified, and knowledgeable estate planning lawyers at Racine Olson have helped clients with their estate plans for more than 70 years. Our team of attorneys includes partners Randy Budge, and Lane Erickson, and attorneys Nate Palmer and Dave Bagley. Each of our attorneys has received the highest ratings possible on several of the top legal rating services, including AVVO, Martindale and Hubbell, and Justia. These ratings are earned based on feedback from our clients, other attorneys we work with and the judges we appear before on a regular basis. More importantly, each of our attorneys is experienced in every aspect of estate planning including dealing with community property.

I’ve found that most people don’t get their estate plan done because they don’t know how to start. The easiest way to get started is to download and fill out our free Estate Planning Questionnaire and then schedule a free 30-minute consultation where we can meet with you personally to answer your questions and help you understand all the options available to you.

To put it simply, community property is usually all the property that a married couple in Idaho own. The property is owned jointly which is why it is called community property.

There is a presumption under Idaho law that when a couple is married all the property they own is community property. However, this presumption can be rebutted by any evidence that shows that the property is separately owned rather than being community property.

When property is community property it means that both spouses have an undivided one-half ownership interest in that property. Additionally, community property enjoys specific protections under Idaho’s probate and estate planning laws. In other words, if property is community property, then a person cannot distribute that community property through their last will and testament to someone other than the surviving spouse without the surviving spouse’s consent. In other words, the surviving spouse will know they are protected and that there won’t be some other person who will suddenly become a joint owner in community property with them.

Not all property owned in Idaho is community property. In fact, there is quite a bit of separate property that is owned by a person who is married. Separate property can occur by one of the spouses receiving the property as a gift. This gift could be given by the other spouse, or it could be received as an inheritance from the individual’s parents or other persons, or the property could be purchased as separate property by the spouse with their separate money.

Additionally, married couples in Idaho are entitled to complete a marriage property settlement or separation agreement under Idaho statutes. Some people call this a postnuptial agreement. In this type of agreement, the spouses can be specific about the property that each of them own separately, as well as property they continue to own jointly as community property.

When it comes to Estate Planning, an individual can gift or give away their separate property to whomever they want, whenever they want. Regardless of whether they gift it away while they are alive, or they do it through their last will and testament upon their death, their separate property is theirs to give to whomever they want. This means that if they want to give their separate property to somebody other than the surviving spouse, they’re able to do it and the surviving spouse cannot stop this from happening, with some very specific limitations that won’t be described in this article.

However, as set forth above, when it comes to community property, there are some specific protections in place for the surviving spouse that limit the other spouse’s ability to transfer community property away. For example, if a husband and wife own a home jointly as community property, and the husband passes away, he cannot gift away his portion of the ownership in that home to anyone other than the surviving spouse. This is done specifically so that the surviving spouse can be assured that they will continue to be able to have a place to live and to support themselves through the estate they owned jointly with their spouse before the spouse passed away.

If you have questions or concerns about how community property laws could affect your own estate planning or whether the property that you own is community property or separate property, we can help. We have assisted numerous clients in the creation of customized estate plans and have helped them gift both community and separate property. We are confident that we can answer your questions and help you too!

Our team of Idaho lawyers can help you with any of your estate planning or probate needs. 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 free 30-minute consultation. Call us toll free at 877.232.6101 or 208.232.6101 for a free consultation. You can also email us directly at lane@racineolson.com or stop by our office at 201 East Center Street, Pocatello, Idaho 83201. We will answer your questions and help you solve your Idaho estate planning problems.