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The Supreme Court of Washington: Surviving Spouse Gave Up Right to Intestate Succession in Separation Contract

The Supreme Court of Washington held in a May 2020 opinion, In Re Estate of Petelle, that the right of a surviving spouse to intestate succession can be waived in a separation contract, even if not expressly mentioned.  Broad language waiving “all marital and property rights” includes the right to inherit as an intestate beneficiary.

The Facts of In re Estate of Petelle

Michael and Michelle Petelle were married for six years.  Michael filed a petition to dissolve the marriage.  The parties executed a separation contract and CR 2A agreement.  The separation contract divided assets and liabilities, contained an integration clause, and required all modifications to be in writing.

The Separation Contract

In the separation contract, the parties agreed “to make a complete and final settlement” of all their marital and property rights and obligations on the following terms and conditions and:

The contract also provides that the “contract shall be final and binding upon the execution of both parties, whether or not a legal separation or decree of dissolution is obtained[,]” and, by its terms, the contract remained valid and enforceable against the estate of either party if either party died after the execution of the contract.  Though the contract contains a “Full Satisfaction of All Claims” section, the right to intestate succession is not mentioned.

Michelle claimed that her and the decedent were considering reconciliation.  However, before any reconciliation or divorce occurred, the decedent died.  Decedent died intestate.

Michelle opened decedent’s probate, but did not disclose the existence of the dissolution action or the separation contract.   She also did not give notice to any of the decedent’s heirs of her intent to petition for nonintervention powers pursuant to RCW 11.68.041(2).

Decedent’s Mother Petitions For Termination Of The Surviving Spouse’s Intestate Succession Rights

Decedent’s mother contested the grant of powers to Michelle.  Decedent’s mother also petitioned the trial court to terminate petitioner’s right to intestate succession, which the trial court denied.

The Court of Appeals reversed, finding that the petitioner waived her right to intestate succession under the language in the separation contract.

Surviving Spouse Intestate Inheritance Rights In Washington

Chapter 11.04 RCW controls intestate distribution and intestate rights.  Under RCW 11.04.015(1)(c) a surviving spouse is entitled to receive three-quarters of a decedent’s estate when the decedent is survived by no children, but is survived by a parent or sibling.  Read more about Surviving Spouse Rights In Washington.

Can A Surviving Spouse’s Statutory Intestate Succession Rights Be Waived?

Yes, statutory intestate rights can be waived in Washington.   Waiver can be either express or implied.  An express waiver is governed by its own terms.  Implied waiver may be found based on conduct conclusively establishing intent to waive a right.

The doctrine of waiver ordinarily applies to all rights or privileges, and the party alleged to have waived a right must generally have actual or constructive knowledge of the existence of the right. Bowman v. Webster, 44 Wn.2d 667, 669, 269 P.2d 960 (1954). In this case, the effect of the separation contract is determined based on the provisions in the agreement and the agreement as a whole.

Does A Separation Contract Have To Specifically Mention Intestate Rights To Waive Them?

No, intestate rights do not have to be specifically referenced in a separation contract to be explicitly waived under Washington law.

The Washington Supreme Court compared the separation contract in this case to a separation contract analyzed in In re Estate of Brown, 28 Wn. 2d 436 (1947).  In In re Estate of Brown, a husband died after executing a separation contract, but before the dissolution was final.  In Brown, the court found that the wife expressly waived her homestead rights because:

  • The agreement indicated it was to be a final and conclusive agreement regardless of whether either party died before a divorce decree was entered;
  • The agreement divided the assets free of all claims of the other party; and
  • The agreement was intended to be biding on each spouse’s “heirs and assigns forever.”

In this case, the Court found that the separation contract contained more explicit language regarding the resolution of all marital rights than in Brown, stating:

Here, the agreement provides, “[T]he parties hereby stipulate and agree to make a complete and final settlement of all their marital and property rights and obligations on the following terms and conditions.” CP at 43 (emphasis added). The Court of Appeals reasoned that “[t]his language is, arguably, sufficient to constitute waiver of all marital and property rights flowing from the marital relationship, including the right to intestate succession.” Petelle, 8 Wn. App. 2d at 721. We agree. This provision is an express declaration to resolve “all marital and property rights,” leaving no ambiguity that some or any marital or property rights remain unresolved. Our conclusion is further supported by a general purpose of separation contracts—to divide assets and liabilities in preparation for divorce.

Michelle argued that the phrase “all their marital and property rights” does not include the right to intestate succession.  The Washington Supreme Court relied on Brown, where broad, all-encompassing language was used in the separation agreement, and where a waiver of the surviving spouse’s right to intestate succession was found, stating:

The fact that the right to intestate succession was not specifically mentioned in the contract does not limit the clear and explicit language providing the agreement is a complete and final settlement of all marital and property rights.  The rights of a surviving spouse under RCW 11.04.015 flow from the marital status. Because the right to intestate succession is a result of the marital status, the right to intestate succession is similar to a marital or property right and we find the right is encompassed in this language.

The Takeaway

The rights of a surviving spouse under Wash. Rev. Code § 11.04.015 flow from the marital status.  The right to intestate succession is a result of the marital status, and the right to intestate succession is similar to a marital or property right.  Broad language contained in a separation contract waiving all marital and property rights can encompass a surviving spouse’s right to intestate succession, and operate as a waiver of that right under Washington law if a spouse dies before the dissolution of marriage is final.

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