By Matthew P. Stucki
A couple of concepts that are often confusing for many clients deal with: 1) the difference between separate property and community property, and 2) how separate property of an individual is distributed upon his or her death if he or she does not have a Last Will and Testament.
Under Idaho Law, property that is owned by the wife prior to marriage and property that is acquired after marriage by way of gift, bequest, devise or descent, shall remain the sole and separate property of the wife. (vice versa for the husband). See Idaho Code § 32-903. However, to maintain the separate nature of the property, it is important that the wife does not mix her separate property with her husbands. For example, if a woman has $20,000 of separate property in an account before marriage and after marriage combines her account with her husband’s account, with both her and her husband thereafter using the account as a common account, then the property that the woman initial had is likely to have lost its classification as separate property of the wife.
The Idaho Supreme Court has stated that, “When separate and community property are commingled so that tracing is impossible, it is presumed to be community property. Martsch v. Martsch, 103 Idaho 142 (1982). The burden is then place on the wife to prove that there is traceable property that is her separate property.
The question may be asked, what does separate property versus community property have to do with the way one’s property is distributed upon his or her death if he or she does not have a Last Will and Testament. The answer is fairly straightforward in Idaho. A surviving spouse receives all of a deceased spouse’s community property. However, a surviving spouse receives only ½ of all of a deceased spouse’s separate property, with the remaining ½ going to the deceased spouse’s issue or parents. See Idaho Code § 15-2-102.
If you have any questions regarding how to ensure both separate property and community property pass to your heirs according to your wishes and desires, please do not hesitate to contact us.
Call us toll free at 877-232-6101 or 208-232-6101 for a consultation with Matthew P. Stucki and the Racine Olson team of Estate Planning attorneys in Pocatello, Idaho Falls, or Boise. You can also email Matthew P. Stucki directly at mps@racinelaw.net. We will answer your Idaho, Estate Planning questions and will help you determine how to meet your personal estate planning needs.
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