If you are married and living in Washington, there is a good chance that one of the most powerful estate planning tools available to you has never been mentioned in any estate planning conversation you have had. It is not a trust. It is not a complex arrangement requiring years of maintenance. It is a relatively short, straightforward document called a community property agreement—and for many Washington couples, it is the single most efficient piece of their entire estate plan.
Washington is one of nine community property states in the country, and Washington’s community property laws create options that simply do not exist elsewhere. A community property agreement takes advantage of those laws in a direct and practical way: it ensures that when one spouse dies, all of the couple’s property passes automatically to the surviving spouse without going through probate at all. No court. No waiting. No public filing. Just a clean, efficient transfer.
This article explains what a community property agreement is, how it works, what it cannot do, and when it might not be the right fit.
What a community property agreement is
A community property agreement (CPA) is a written contract between spouses that addresses the character of their property—whether it is community property or separate property—and what happens to it when one of them dies.
Washington law (RCW 26.16.120) authorizes married couples to enter into written agreements that classify all of their property, including property that would otherwise be separate property, as community property. More importantly for estate planning purposes, the same agreement can provide that when one spouse dies, all of that community property passes automatically to the surviving spouse.
When a CPA includes this survivorship provision—and most estate planning CPAs do—the result is that probate is avoided entirely for the first death. The surviving spouse becomes the sole owner of all community property by operation of law, without any court proceeding. This is what makes the CPA such a powerful tool.
Why it often outperforms a trust for probate avoidance
In Washington, the community property agreement frequently accomplishes the same core goal as a revocable living trust—passing property to the surviving spouse without probate—at a fraction of the cost and complexity.
A revocable living trust avoids probate only for assets that have been properly transferred into the trust. As discussed in our article on trusts, this funding process is an ongoing obligation, and assets that are never transferred into the trust still go through probate. A CPA, by contrast, covers all community property by its terms, without requiring individual transfers of each asset. New accounts, new real estate, new investments—all of it is covered, because the agreement classifies the character of the property broadly rather than relying on a separate transfer to a trust.
A CPA is also typically far less expensive to prepare than a revocable living trust. A trust-based plan for a married couple in Washington might cost $2,500 to $5,000 or more in attorney fees, plus ongoing maintenance as circumstances change. A CPA, prepared as part of a broader estate plan, is a much simpler document.
For many Washington couples with straightforward estates, a will and a community property agreement together accomplish everything a revocable living trust would accomplish—and do so more simply and less expensively.
What a CPA does at the first death
When the first spouse dies and a community property agreement with survivorship language is in place, the surviving spouse becomes the sole owner of all property covered by the agreement. This transfer happens by operation of law—automatically, at the moment of death—without probate.
As a practical matter, the surviving spouse will still need to take steps to update the title to certain assets. Real estate, for example, will need to have the deceased spouse’s name removed from the deed, which typically involves recording an affidavit of survivorship (along with a copy of the CPA and the death certificate) with the county auditor. Financial institutions will similarly need to be notified and accounts updated. But this administrative process is far simpler and less expensive than a full probate proceeding.
The community property agreement does not affect assets that pass by beneficiary designation—life insurance, retirement accounts, and similar assets pass directly to named beneficiaries regardless of the CPA. And it does not affect property held in joint tenancy with right of survivorship, which passes to the surviving joint tenant automatically under its own terms.
What a CPA does not do: planning for the second death
This is the most important limitation of a community property agreement: it solves the first death, but it does not solve the second.
After the first spouse dies and the survivor becomes the sole owner of all the couple’s property, that surviving spouse now owns everything outright. There is no longer a CPA in place to pass property automatically at the second death. The survivor’s estate will go through probate unless other arrangements—a will, a trust, beneficiary designations, or a new estate plan with a new CPA (if the survivor remarries)—are in place to address it.
This means a community property agreement should never be the only estate planning document a couple has. It should always be paired with wills for both spouses (and ideally durable powers of attorney and health care directives as well). The will governs what happens at the second death or if both spouses die together, and also serves as a safety net for any property that falls outside the CPA.
A complete plan for a married Washington couple often looks like this: a community property agreement to handle the first death efficiently, individual wills to handle the second death and express guardianship nominations and other wishes, and durable powers of attorney and health care directives to handle incapacity during life.
When a CPA might not be the right fit
For most married Washington couples with uncomplicated estates, a community property agreement is an excellent planning tool. But there are situations where it requires more careful analysis—or where a different approach may be better:
Blended families. If one or both spouses have children from a prior relationship, a CPA that passes everything to the surviving spouse may leave the deceased spouse’s children with nothing. The surviving spouse is under no legal obligation to provide for their stepchildren, and may not do so—particularly if circumstances change after the first death. In blended family situations, the estate plan needs to be structured more carefully to protect children of prior relationships, and a trust with specific provisions may be more appropriate than a simple CPA.
Significant separate property concerns. A CPA can convert separate property—property owned before the marriage or received as a gift or inheritance during the marriage—into community property. This may or may not be what the spouses want. If one spouse brought significant assets into the marriage and wants those assets to remain separate (for example, to pass to their children from a prior relationship rather than to the surviving spouse), converting that property to community property under a CPA could produce unintended results.
Creditor exposure. When separate property is converted to community property, it becomes potentially reachable by the other spouse’s creditors. If one spouse has significant debts, business liabilities, or litigation exposure, converting separate property to community property may put it at risk in ways the other spouse would not want.
Out-of-state real estate. A Washington community property agreement generally controls Washington property, but its effect on real estate located in other states is less certain. If you own property in a non-community property state, that property may need to be addressed through a different mechanism—typically a trust or a transfer-on-death deed if the other state permits one.
Very large taxable estates. For couples with estates large enough to face Washington estate tax (currently triggered above $3 million) or federal estate tax, the tax planning picture may complicate the CPA analysis. Certain credit shelter trust arrangements, which are sometimes used to minimize estate tax at the first death, may not work as cleanly alongside a CPA that passes everything outright to the survivor. Tax considerations at this level warrant individualized advice.
How a CPA works alongside other estate planning tools
A community property agreement does not and should not operate in isolation. Here is how it fits with the rest of a typical Washington estate plan:
Wills. Each spouse should have a will, even with a CPA in place. The will nominates a personal representative, expresses guardianship wishes for minor children, makes any specific bequests, and governs the estate at the second death. The CPA handles the first death; the will handles the second.
Beneficiary designations. Life insurance, retirement accounts, and payable-on-death accounts pass by beneficiary designation regardless of the CPA. Keeping these designations current and coordinated with your overall plan is essential. A CPA does not override a beneficiary designation.
Durable powers of attorney and health care directives. These documents govern incapacity during life—an area the CPA does not address at all. A complete estate plan includes all of these pieces.
Revocable living trusts. For couples who decide a trust is appropriate—because of out-of-state real estate, a blended family situation, or other factors discussed in our article on trusts—the CPA may play a reduced role. The trust can handle the first death for assets held in it, and the CPA may be used more narrowly or not at all. This depends on the specific facts and requires individualized advice.
Registered domestic partners
Washington’s community property laws extend to registered domestic partners (RCW 26.60.015), who have rights similar to married spouses under Washington law. Registered domestic partners can also enter into community property agreements with the same effect as married couples. If you are in a registered domestic partnership, discuss this option with an attorney to make sure your estate plan takes full advantage of Washington’s framework.
Frequently Asked Questions
Is a community property agreement the same as a will?
No. A community property agreement is a contract between spouses that classifies property and determines what happens to it at the first death. A will is a unilateral declaration of your wishes that takes effect at death and is administered through probate. They serve different purposes and work best together.
Can a community property agreement be revoked?
Yes, at any time by mutual written agreement of both spouses. Either spouse can also revoke the agreement unilaterally with proper notice to the other spouse. An attorney can advise on the correct procedure for revocation.
Does a CPA cover property we acquire after signing it?
Yes, if the agreement is drafted to classify all property—present and future—as community property with survivorship rights. This is one of the key advantages over a trust: the coverage is automatic and comprehensive, without requiring individual transfers of each asset.
What if my spouse and I disagree about the terms of a CPA?
A community property agreement requires both spouses to sign. If you cannot agree on the terms, it cannot be implemented as drafted. An attorney can help you understand the options and work through disagreements. In some cases, a more tailored arrangement—such as a trust—may better accommodate different wishes.
Does a CPA avoid estate taxes?
No. A community property agreement does not reduce Washington or federal estate taxes. It simply determines how property passes at death. For taxable estates, separate tax planning strategies are typically required alongside the CPA.
Conclusion
For most married Washington couples, a community property agreement is one of the highest-value pieces of an estate plan. It is simple, inexpensive, and effective—and it takes advantage of Washington’s community property framework in a way that residents of other states simply cannot. Combined with wills, durable powers of attorney, and health care directives, it provides a solid foundation for protecting both spouses and making things as easy as possible for the family when the time comes.
If you have never heard of a community property agreement, or if you are wondering whether one is right for your situation, we are happy to explain the details and walk through your specific circumstances. The first conversation is free. Give us a call.