BILL REQ. #: S-4923.1
| State of Washington | 60th Legislature | 2008 Regular Session |
READ FIRST TIME 02/04/08.
AN ACT Relating to expanding rights and responsibilities of all couples recognized as domestic partners under chapter 26.60 RCW; amending RCW 42.17.241, 42.52.040, 43.03.305, 43.185A.010, 43.20B.080, 70.123.020, 70.129.140, 74.42.070, 4.22.020, 5.60.060, 5.66.010, 7.69.020, 7.69B.010, 26.50.010, 4.08.030, 4.08.040, 4.20.046, 28B.15.621, 73.08.005, 72.36.030, 72.36.040, 72.36.050, 72.36.070, 72.36.110, 73.04.120, 73.36.140, 73.04.010, 73.04.115, 26.16.010, 26.16.020, 26.16.030, 26.16.050, 26.16.060, 26.16.070, 26.16.080, 26.16.090, 26.16.095, 26.16.100, 26.16.120, 26.16.140, 26.16.150, 26.16.180, 26.16.190, 26.16.200, 26.16.205, 26.16.210, 26.16.220, 26.16.230, 26.16.240, 26.16.250, 11.84.030, 64.28.010, 64.28.020, 64.28.030, 64.28.040, 9.46.231, 9A.83.030, 69.50.505, 64.06.010, 6.13.020, 6.13.060, 6.13.080, 6.13.180, 6.13.210, 6.13.220, 6.13.230, 26.16.125, 60.04.211, 82.45.010, 84.38.030, 84.38.070, 84.38.130, 84.38.150, 84.36.381, 84.36.041, 84.36.120, 84.36.383, 84.37.080, 7.36.020, 11.88.010, 11.88.040, 11.88.090, 11.88.125, 11.76.080, 11.92.140, 11.94.090, 11.94.100, 11.94.140, 11.02.005, 11.02.070, 11.02.100, 11.02.120, 11.04.095, 11.08.300, 11.10.010, 11.11.010, 11.12.051, 11.12.095, 11.12.180, 11.28.030, 11.28.131, 11.28.185, 11.54.010, 11.54.020, 11.54.030, 11.54.040, 11.54.050, 11.54.070, 11.62.005, 11.62.010, 11.62.030, 11.68.011, 11.80.130, 11.96A.030, 11.96A.120, 11.100.025, 11.04.290, 11.10.030, 11.80.010, 11.80.050, 11.114.010, 26.60.050, 26.09.004, 26.09.010, 26.09.020, 26.09.030, 26.09.040, 26.09.050, 26.09.060, 26.09.070, 26.09.080, 26.09.090, 26.09.100, 26.09.110, 26.09.120, 26.09.170, 26.09.210, 26.09.255, 26.09.280, 26.09.290, 26.09.310, 26.10.050, 26.10.180, 26.12.190, 26.18.010, 26.18.020, 26.18.030, 26.18.040, 26.18.050, 26.18.070, 26.18.090, 26.18.100, 26.18.110, 26.18.120, 26.18.140, 26.18.150, 26.19.071, 26.19.075, 26.20.035, 26.20.071, 26.20.080, 26.21A.010, 26.21A.150, 26.21A.275, 26.09.015, 26.09.194, 26.12.172, and 26.12.260; reenacting and amending RCW 42.17.020, 11.07.010, 26.09.150, and 26.09.015; adding new sections to chapter 26.60 RCW; creating new sections; providing effective dates; and providing an expiration date.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 101 (1) Sixty days before the effective date
of this act, and again thirty days before the effective date of this
act, the secretary of state shall send a letter to the mailing address
on file of each domestic partner registered under chapter 26.60 RCW
notifying the person that Washington's law on the rights and
responsibilities of state registered domestic partners will change.
(2) The notice shall provide a brief summary of new laws, including
changes to the laws governing community property, transfer of property,
taxes, mutual responsibilities for certain debts to third parties, and
other provisions. The notice shall also explain that the way domestic
partnerships are terminated has changed and that, unless there are
certain limited circumstances, it will be necessary to participate in
a dissolution proceeding in court to end a domestic partnership.
(3) The notice shall inform the person that those domestic partners
who do not wish to be subject to the new rights and responsibilities
must terminate their domestic partnership before the effective date of
the act.
Sec. 201 RCW 42.17.020 and 2007 c 358 s 1 and 2007 C 180 S 1 are
each reenacted and amended to read as follows:
The definitions in this section apply throughout this chapter
unless the context clearly requires otherwise.
(1) "Actual malice" means to act with knowledge of falsity or with
reckless disregard as to truth or falsity.
(2) "Agency" includes all state agencies and all local agencies.
"State agency" includes every state office, department, division,
bureau, board, commission, or other state agency. "Local agency"
includes every county, city, town, municipal corporation, quasi-municipal corporation, or special purpose district, or any office,
department, division, bureau, board, commission, or agency thereof, or
other local public agency.
(3) "Authorized committee" means the political committee authorized
by a candidate, or by the public official against whom recall charges
have been filed, to accept contributions or make expenditures on behalf
of the candidate or public official.
(4) "Ballot proposition" means any "measure" as defined by RCW
29A.04.091, or any initiative, recall, or referendum proposition
proposed to be submitted to the voters of the state or any municipal
corporation, political subdivision, or other voting constituency from
and after the time when the proposition has been initially filed with
the appropriate election officer of that constituency prior to its
circulation for signatures.
(5) "Benefit" means a commercial, proprietary, financial, economic,
or monetary advantage, or the avoidance of a commercial, proprietary,
financial, economic, or monetary disadvantage.
(6) "Bona fide political party" means:
(a) An organization that has filed a valid certificate of
nomination with the secretary of state under chapter 29A.20 RCW;
(b) The governing body of the state organization of a major
political party, as defined in RCW 29A.04.086, that is the body
authorized by the charter or bylaws of the party to exercise authority
on behalf of the state party; or
(c) The county central committee or legislative district committee
of a major political party. There may be only one legislative district
committee for each party in each legislative district.
(7) "Depository" means a bank designated by a candidate or
political committee pursuant to RCW 42.17.050.
(8) "Treasurer" and "deputy treasurer" mean the individuals
appointed by a candidate or political committee, pursuant to RCW
42.17.050, to perform the duties specified in that section.
(9) "Candidate" means any individual who seeks nomination for
election or election to public office. An individual seeks nomination
or election when he or she first:
(a) Receives contributions or makes expenditures or reserves space
or facilities with intent to promote his or her candidacy for office;
(b) Announces publicly or files for office;
(c) Purchases commercial advertising space or broadcast time to
promote his or her candidacy; or
(d) Gives his or her consent to another person to take on behalf of
the individual any of the actions in (a) or (c) of this subsection.
(10) "Caucus political committee" means a political committee
organized and maintained by the members of a major political party in
the state senate or state house of representatives.
(11) "Commercial advertiser" means any person who sells the service
of communicating messages or producing printed material for broadcast
or distribution to the general public or segments of the general public
whether through the use of newspapers, magazines, television and radio
stations, billboard companies, direct mail advertising companies,
printing companies, or otherwise.
(12) "Commission" means the agency established under RCW 42.17.350.
(13) "Compensation" unless the context requires a narrower meaning,
includes payment in any form for real or personal property or services
of any kind: PROVIDED, That for the purpose of compliance with RCW
42.17.241, the term "compensation" shall not include per diem
allowances or other payments made by a governmental entity to reimburse
a public official for expenses incurred while the official is engaged
in the official business of the governmental entity.
(14) "Continuing political committee" means a political committee
that is an organization of continuing existence not established in
anticipation of any particular election campaign.
(15)(a) "Contribution" includes:
(i) A loan, gift, deposit, subscription, forgiveness of
indebtedness, donation, advance, pledge, payment, transfer of funds
between political committees, or anything of value, including personal
and professional services for less than full consideration;
(ii) An expenditure made by a person in cooperation, consultation,
or concert with, or at the request or suggestion of, a candidate, a
political committee, the person or persons named on the candidate's or
committee's registration form who direct expenditures on behalf of the
candidate or committee, or their agents;
(iii) The financing by a person of the dissemination, distribution,
or republication, in whole or in part, of broadcast, written, graphic,
or other form of political advertising or electioneering communication
prepared by a candidate, a political committee, or its authorized
agent;
(iv) Sums paid for tickets to fund-raising events such as dinners
and parties, except for the actual cost of the consumables furnished at
the event.
(b) "Contribution" does not include:
(i) Standard interest on money deposited in a political committee's
account;
(ii) Ordinary home hospitality;
(iii) A contribution received by a candidate or political committee
that is returned to the contributor within five business days of the
date on which it is received by the candidate or political committee;
(iv) A news item, feature, commentary, or editorial in a regularly
scheduled news medium that is of primary interest to the general
public, that is in a news medium controlled by a person whose business
is that news medium, and that is not controlled by a candidate or a
political committee;
(v) An internal political communication primarily limited to the
members of or contributors to a political party organization or
political committee, or to the officers, management staff, or
stockholders of a corporation or similar enterprise, or to the members
of a labor organization or other membership organization;
(vi) The rendering of personal services of the sort commonly
performed by volunteer campaign workers, or incidental expenses
personally incurred by volunteer campaign workers not in excess of
fifty dollars personally paid for by the worker. "Volunteer services,"
for the purposes of this section, means services or labor for which the
individual is not compensated by any person;
(vii) Messages in the form of reader boards, banners, or yard or
window signs displayed on a person's own property or property occupied
by a person. However, a facility used for such political advertising
for which a rental charge is normally made must be reported as an in-kind contribution and counts towards any applicable contribution limit
of the person providing the facility;
(viii) Legal or accounting services rendered to or on behalf of:
(A) A political party or caucus political committee if the person
paying for the services is the regular employer of the person rendering
such services; or
(B) A candidate or an authorized committee if the person paying for
the services is the regular employer of the individual rendering the
services and if the services are solely for the purpose of ensuring
compliance with state election or public disclosure laws; or
(ix) The performance of ministerial functions by a person on behalf
of two or more candidates or political committees either as volunteer
services defined in (b)(vi) of this subsection or for payment by the
candidate or political committee for whom the services are performed as
long as:
(A) The person performs solely ministerial functions;
(B) A person who is paid by two or more candidates or political
committees is identified by the candidates and political committees on
whose behalf services are performed as part of their respective
statements of organization under RCW 42.17.040; and
(C) The person does not disclose, except as required by law, any
information regarding a candidate's or committee's plans, projects,
activities, or needs, or regarding a candidate's or committee's
contributions or expenditures that is not already publicly available
from campaign reports filed with the commission, or otherwise engage in
activity that constitutes a contribution under (a)(ii) of this
subsection.
A person who performs ministerial functions under this subsection
(15)(b)(ix) is not considered an agent of the candidate or committee as
long as he or she has no authority to authorize expenditures or make
decisions on behalf of the candidate or committee.
(c) Contributions other than money or its equivalent are deemed to
have a monetary value equivalent to the fair market value of the
contribution. Services or property or rights furnished at less than
their fair market value for the purpose of assisting any candidate or
political committee are deemed a contribution. Such a contribution
must be reported as an in-kind contribution at its fair market value
and counts towards any applicable contribution limit of the provider.
(16) "Elected official" means any person elected at a general or
special election to any public office, and any person appointed to fill
a vacancy in any such office.
(17) "Election" includes any primary, general, or special election
for public office and any election in which a ballot proposition is
submitted to the voters: PROVIDED, That an election in which the
qualifications for voting include other than those requirements set
forth in Article VI, section 1 (Amendment 63) of the Constitution of
the state of Washington shall not be considered an election for
purposes of this chapter.
(18) "Election campaign" means any campaign in support of or in
opposition to a candidate for election to public office and any
campaign in support of, or in opposition to, a ballot proposition.
(19) "Election cycle" means the period beginning on the first day
of January after the date of the last previous general election for the
office that the candidate seeks and ending on December 31st after the
next election for the office. In the case of a special election to
fill a vacancy in an office, "election cycle" means the period
beginning on the day the vacancy occurs and ending on December 31st
after the special election.
(20) "Electioneering communication" means any broadcast, cable, or
satellite television or radio transmission, United States postal
service mailing, billboard, newspaper, or periodical that:
(a) Clearly identifies a candidate for a state, local, or judicial
office either by specifically naming the candidate, or identifying the
candidate without using the candidate's name;
(b) Is broadcast, transmitted, mailed, erected, distributed, or
otherwise published within sixty days before any election for that
office in the jurisdiction in which the candidate is seeking election;
and
(c) Either alone, or in combination with one or more communications
identifying the candidate by the same sponsor during the sixty days
before an election, has a fair market value of five thousand dollars or
more.
(21) "Electioneering communication" does not include:
(a) Usual and customary advertising of a business owned by a
candidate, even if the candidate is mentioned in the advertising when
the candidate has been regularly mentioned in that advertising
appearing at least twelve months preceding his or her becoming a
candidate;
(b) Advertising for candidate debates or forums when the
advertising is paid for by or on behalf of the debate or forum sponsor,
so long as two or more candidates for the same position have been
invited to participate in the debate or forum;
(c) A news item, feature, commentary, or editorial in a regularly
scheduled news medium that is:
(i) Of primary interest to the general public;
(ii) In a news medium controlled by a person whose business is that
news medium; and
(iii) Not a medium controlled by a candidate or a political
committee;
(d) Slate cards and sample ballots;
(e) Advertising for books, films, dissertations, or similar works
(i) written by a candidate when the candidate entered into a contract
for such publications or media at least twelve months before becoming
a candidate, or (ii) written about a candidate;
(f) Public service announcements;
(g) A mailed internal political communication primarily limited to
the members of or contributors to a political party organization or
political committee, or to the officers, management staff, or
stockholders of a corporation or similar enterprise, or to the members
of a labor organization or other membership organization;
(h) An expenditure by or contribution to the authorized committee
of a candidate for state, local, or judicial office; or
(i) Any other communication exempted by the commission through rule
consistent with the intent of this chapter.
(22) "Expenditure" includes a payment, contribution, subscription,
distribution, loan, advance, deposit, or gift of money or anything of
value, and includes a contract, promise, or agreement, whether or not
legally enforceable, to make an expenditure. The term "expenditure"
also includes a promise to pay, a payment, or a transfer of anything of
value in exchange for goods, services, property, facilities, or
anything of value for the purpose of assisting, benefiting, or honoring
any public official or candidate, or assisting in furthering or
opposing any election campaign. For the purposes of this chapter,
agreements to make expenditures, contracts, and promises to pay may be
reported as estimated obligations until actual payment is made. The
term "expenditure" shall not include the partial or complete repayment
by a candidate or political committee of the principal of a loan, the
receipt of which loan has been properly reported.
(23) "Final report" means the report described as a final report in
RCW 42.17.080(2).
(24) "General election" for the purposes of RCW 42.17.640 means the
election that results in the election of a person to a state office.
It does not include a primary.
(25) "Gift," is as defined in RCW 42.52.010.
(26) "Immediate family" includes the spouse or domestic partner,
dependent children, and other dependent relatives, if living in the
household. For the purposes of RCW 42.17.640 through 42.17.790,
"immediate family" means an individual's spouse or domestic partner,
and child, stepchild, grandchild, parent, stepparent, grandparent,
brother, half brother, sister, or half sister of the individual and the
spouse or the domestic partner of any such person and a child,
stepchild, grandchild, parent, stepparent, grandparent, brother, half
brother, sister, or half sister of the individual's spouse or domestic
partner and the spouse or the domestic partner of any such person.
(27) "Incumbent" means a person who is in present possession of an
elected office.
(28) "Independent expenditure" means an expenditure that has each
of the following elements:
(a) It is made in support of or in opposition to a candidate for
office by a person who is not (i) a candidate for that office, (ii) an
authorized committee of that candidate for that office, (iii) a person
who has received the candidate's encouragement or approval to make the
expenditure, if the expenditure pays in whole or in part for political
advertising supporting that candidate or promoting the defeat of any
other candidate or candidates for that office, or (iv) a person with
whom the candidate has collaborated for the purpose of making the
expenditure, if the expenditure pays in whole or in part for political
advertising supporting that candidate or promoting the defeat of any
other candidate or candidates for that office;
(b) The expenditure pays in whole or in part for political
advertising that either specifically names the candidate supported or
opposed, or clearly and beyond any doubt identifies the candidate
without using the candidate's name; and
(c) The expenditure, alone or in conjunction with another
expenditure or other expenditures of the same person in support of or
opposition to that candidate, has a value of five hundred dollars or
more. A series of expenditures, each of which is under five hundred
dollars, constitutes one independent expenditure if their cumulative
value is five hundred dollars or more.
(29)(a) "Intermediary" means an individual who transmits a
contribution to a candidate or committee from another person unless the
contribution is from the individual's employer, immediate family as
defined for purposes of RCW 42.17.640 through 42.17.790, or an
association to which the individual belongs.
(b) A treasurer or a candidate is not an intermediary for purposes
of the committee that the treasurer or candidate serves.
(c) A professional fund-raiser is not an intermediary if the fund-raiser is compensated for fund-raising services at the usual and
customary rate.
(d) A volunteer hosting a fund-raising event at the individual's
home is not an intermediary for purposes of that event.
(30) "Legislation" means bills, resolutions, motions, amendments,
nominations, and other matters pending or proposed in either house of
the state legislature, and includes any other matter that may be the
subject of action by either house or any committee of the legislature
and all bills and resolutions that, having passed both houses, are
pending approval by the governor.
(31) "Lobby" and "lobbying" each mean attempting to influence the
passage or defeat of any legislation by the legislature of the state of
Washington, or the adoption or rejection of any rule, standard, rate,
or other legislative enactment of any state agency under the state
Administrative Procedure Act, chapter 34.05 RCW. Neither "lobby" nor
"lobbying" includes an association's or other organization's act of
communicating with the members of that association or organization.
(32) "Lobbyist" includes any person who lobbies either in his or
her own or another's behalf.
(33) "Lobbyist's employer" means the person or persons by whom a
lobbyist is employed and all persons by whom he or she is compensated
for acting as a lobbyist.
(34) "Ministerial functions" means an act or duty carried out as
part of the duties of an administrative office without exercise of
personal judgment or discretion.
(35) "Participate" means that, with respect to a particular
election, an entity:
(a) Makes either a monetary or in-kind contribution to a candidate;
(b) Makes an independent expenditure or electioneering
communication in support of or opposition to a candidate;
(c) Endorses a candidate prior to contributions being made by a
subsidiary corporation or local unit with respect to that candidate or
that candidate's opponent;
(d) Makes a recommendation regarding whether a candidate should be
supported or opposed prior to a contribution being made by a subsidiary
corporation or local unit with respect to that candidate or that
candidate's opponent; or
(e) Directly or indirectly collaborates or consults with a
subsidiary corporation or local unit on matters relating to the support
of or opposition to a candidate, including, but not limited to, the
amount of a contribution, when a contribution should be given, and what
assistance, services or independent expenditures, or electioneering
communications, if any, will be made or should be made in support of or
opposition to a candidate.
(36) "Person" includes an individual, partnership, joint venture,
public or private corporation, association, federal, state, or local
governmental entity or agency however constituted, candidate,
committee, political committee, political party, executive committee
thereof, or any other organization or group of persons, however
organized.
(37) "Person in interest" means the person who is the subject of a
record or any representative designated by that person, except that if
that person is under a legal disability, the term "person in interest"
means and includes the parent or duly appointed legal representative.
(38) "Political advertising" includes any advertising displays,
newspaper ads, billboards, signs, brochures, articles, tabloids,
flyers, letters, radio or television presentations, or other means of
mass communication, used for the purpose of appealing, directly or
indirectly, for votes or for financial or other support or opposition
in any election campaign.
(39) "Political committee" means any person (except a candidate or
an individual dealing with his or her own funds or property) having the
expectation of receiving contributions or making expenditures in
support of, or opposition to, any candidate or any ballot proposition.
(40) "Primary" for the purposes of RCW 42.17.640 means the
procedure for nominating a candidate to state office under chapter
29A.52 RCW or any other primary for an election that uses, in large
measure, the procedures established in chapter 29A.52 RCW.
(41) "Public office" means any federal, state, judicial, county,
city, town, school district, port district, special district, or other
state political subdivision elective office.
(42) "Public record" includes any writing containing information
relating to the conduct of government or the performance of any
governmental or proprietary function prepared, owned, used, or retained
by any state or local agency regardless of physical form or
characteristics. For the office of the secretary of the senate and the
office of the chief clerk of the house of representatives, public
records means legislative records as defined in RCW 40.14.100 and also
means the following: All budget and financial records; personnel
leave, travel, and payroll records; records of legislative sessions;
reports submitted to the legislature; and any other record designated
a public record by any official action of the senate or the house of
representatives.
(43) "Recall campaign" means the period of time beginning on the
date of the filing of recall charges under RCW 29A.56.120 and ending
thirty days after the recall election.
(44) "Sponsor of an electioneering communications, independent
expenditures, or political advertising" means the person paying for the
electioneering communication, independent expenditure, or political
advertising. If a person acts as an agent for another or is reimbursed
by another for the payment, the original source of the payment is the
sponsor.
(45) "State legislative office" means the office of a member of the
state house of representatives or the office of a member of the state
senate.
(46) "State office" means state legislative office or the office of
governor, lieutenant governor, secretary of state, attorney general,
commissioner of public lands, insurance commissioner, superintendent of
public instruction, state auditor, or state treasurer.
(47) "State official" means a person who holds a state office.
(48) "Surplus funds" mean, in the case of a political committee or
candidate, the balance of contributions that remain in the possession
or control of that committee or candidate subsequent to the election
for which the contributions were received, and that are in excess of
the amount necessary to pay remaining debts incurred by the committee
or candidate prior to that election. In the case of a continuing
political committee, "surplus funds" mean those contributions remaining
in the possession or control of the committee that are in excess of the
amount necessary to pay all remaining debts when it makes its final
report under RCW 42.17.065.
(49) "Writing" means handwriting, typewriting, printing,
photostating, photographing, and every other means of recording any
form of communication or representation, including, but not limited to,
letters, words, pictures, sounds, or symbols, or combination thereof,
and all papers, maps, magnetic or paper tapes, photographic films and
prints, motion picture, film and video recordings, magnetic or punched
cards, discs, drums, diskettes, sound recordings, and other documents
including existing data compilations from which information may be
obtained or translated.
As used in this chapter, the singular shall take the plural and any
gender, the other, as the context requires.
Sec. 202 RCW 42.17.241 and 1995 c 397 s 9 are each amended to
read as follows:
(1) The statement of financial affairs required by RCW 42.17.240
shall disclose for the reporting individual and each member of his or
her immediate family:
(a) Occupation, name of employer, and business address; and
(b) Each bank or savings account or insurance policy in which any
such person or persons owned a direct financial interest that exceeded
five thousand dollars at any time during the reporting period; each
other item of intangible personal property in which any such person or
persons owned a direct financial interest, the value of which exceeded
five hundred dollars during the reporting period; the name, address,
and nature of the entity; and the nature and highest value of each such
direct financial interest during the reporting period; and
(c) The name and address of each creditor to whom the value of five
hundred dollars or more was owed; the original amount of each debt to
each such creditor; the amount of each debt owed to each creditor as of
the date of filing; the terms of repayment of each such debt; and the
security given, if any, for each such debt: PROVIDED, That debts
arising out of a "retail installment transaction" as defined in chapter
63.14 RCW (Retail Installment Sales Act) need not be reported; and
(d) Every public or private office, directorship, and position held
as trustee; and
(e) All persons for whom any legislation, rule, rate, or standard
has been prepared, promoted, or opposed for current or deferred
compensation: PROVIDED, That for the purposes of this subsection,
"compensation" does not include payments made to the person reporting
by the governmental entity for which such person serves as an elected
official or state executive officer or professional staff member for
his service in office; the description of such actual or proposed
legislation, rules, rates, or standards; and the amount of current or
deferred compensation paid or promised to be paid; and
(f) The name and address of each governmental entity, corporation,
partnership, joint venture, sole proprietorship, association, union, or
other business or commercial entity from whom compensation has been
received in any form of a total value of five hundred dollars or more;
the value of the compensation; and the consideration given or performed
in exchange for the compensation; and
(g) The name of any corporation, partnership, joint venture,
association, union, or other entity in which is held any office,
directorship, or any general partnership interest, or an ownership
interest of ten percent or more; the name or title of that office,
directorship, or partnership; the nature of ownership interest; and
with respect to each such entity: (i) With respect to a governmental
unit in which the official seeks or holds any office or position, if
the entity has received compensation in any form during the preceding
twelve months from the governmental unit, the value of the compensation
and the consideration given or performed in exchange for the
compensation; (ii) the name of each governmental unit, corporation,
partnership, joint venture, sole proprietorship, association, union, or
other business or commercial entity from which the entity has received
compensation in any form in the amount of two thousand five hundred
dollars or more during the preceding twelve months and the
consideration given or performed in exchange for the compensation:
PROVIDED, That the term "compensation" for purposes of this subsection
(1)(g)(ii) does not include payment for water and other utility
services at rates approved by the Washington state utilities and
transportation commission or the legislative authority of the public
entity providing the service: PROVIDED, FURTHER, That with respect to
any bank or commercial lending institution in which is held any office,
directorship, partnership interest, or ownership interest, it shall
only be necessary to report either the name, address, and occupation of
every director and officer of the bank or commercial lending
institution and the average monthly balance of each account held during
the preceding twelve months by the bank or commercial lending
institution from the governmental entity for which the individual is an
official or candidate or professional staff member, or all interest
paid by a borrower on loans from and all interest paid to a depositor
by the bank or commercial lending institution if the interest exceeds
six hundred dollars; and
(h) A list, including legal or other sufficient descriptions as
prescribed by the commission, of all real property in the state of
Washington, the assessed valuation of which exceeds two thousand five
hundred dollars in which any direct financial interest was acquired
during the preceding calendar year, and a statement of the amount and
nature of the financial interest and of the consideration given in
exchange for that interest; and
(i) A list, including legal or other sufficient descriptions as
prescribed by the commission, of all real property in the state of
Washington, the assessed valuation of which exceeds two thousand five
hundred dollars in which any direct financial interest was divested
during the preceding calendar year, and a statement of the amount and
nature of the consideration received in exchange for that interest, and
the name and address of the person furnishing the consideration; and
(j) A list, including legal or other sufficient descriptions as
prescribed by the commission, of all real property in the state of
Washington, the assessed valuation of which exceeds two thousand five
hundred dollars in which a direct financial interest was held:
PROVIDED, That if a description of the property has been included in a
report previously filed, the property may be listed, for purposes of
this provision, by reference to the previously filed report; and
(k) A list, including legal or other sufficient descriptions as
prescribed by the commission, of all real property in the state of
Washington, the assessed valuation of which exceeds five thousand
dollars, in which a corporation, partnership, firm, enterprise, or
other entity had a direct financial interest, in which corporation,
partnership, firm, or enterprise a ten percent or greater ownership
interest was held; and
(l) A list of each occasion, specifying date, donor, and amount, at
which food and beverage in excess of fifty dollars was accepted under
RCW 42.52.150(5); (([and])) and
(m) A list of each occasion, specifying date, donor, and amount, at
which items specified in RCW 42.52.010(((9))) (10) (d) and (f) were
accepted; (([and])) and
(n) Such other information as the commission may deem necessary in
order to properly carry out the purposes and policies of this chapter,
as the commission shall prescribe by rule.
(2) Where an amount is required to be reported under subsection
(1)(a) through (m) of this section, it shall be sufficient to comply
with the requirement to report whether the amount is less than one
thousand dollars, at least one thousand dollars but less than five
thousand dollars, at least five thousand dollars but less than ten
thousand dollars, at least ten thousand dollars but less than twenty-five thousand dollars, or twenty-five thousand dollars or more. An
amount of stock may be reported by number of shares instead of by
market value. No provision of this subsection may be interpreted to
prevent any person from filing more information or more detailed
information than required.
(3) Items of value given to an official's or employee's spouse,
domestic partner, or family member are attributable to the official or
employee, except the item is not attributable if an independent
business, family, or social relationship exists between the donor and
the spouse, domestic partner, or family member.
Sec. 203 RCW 42.52.040 and 1994 c 154 s 104 are each amended to
read as follows:
(1) Except in the course of official duties or incident to official
duties, no state officer or state employee may assist another person,
directly or indirectly, whether or not for compensation, in a
transaction involving the state:
(a) In which the state officer or state employee has at any time
participated; or
(b) If the transaction involving the state is or has been under the
official responsibility of the state officer or state employee within
a period of two years preceding such assistance.
(2) No state officer or state employee may share in compensation
received by another for assistance that the officer or employee is
prohibited from providing under subsection (1) or (3) of this section.
(3) A business entity of which a state officer or state employee is
a partner, managing officer, or employee shall not assist another
person in a transaction involving the state if the state officer or
state employee is prohibited from doing so by subsection (1) of this
section.
(4) This chapter does not prevent a state officer or state employee
from assisting, in a transaction involving the state:
(a) The state officer's or state employee's parent, spouse or
domestic partner, or child, or a child thereof for whom the officer or
employee is serving as guardian, executor, administrator, trustee, or
other personal fiduciary, if the state officer or state employee did
not participate in the transaction; or
(b) Another state employee involved in disciplinary or other
personnel administration proceedings.
Sec. 204 RCW 43.03.305 and 1999 c 102 s 1 are each amended to
read as follows:
There is created a commission to be known as the Washington
citizens' commission on salaries for elected officials, to consist of
sixteen members appointed by the governor as provided in this section.
(1) Nine of the sixteen commission members shall be selected by lot
by the secretary of state from among those registered voters eligible
to vote at the time persons are selected for appointment to full terms
on the commission under subsection (3) of this section. One member
shall be selected from each congressional district. The secretary
shall establish policies and procedures for conducting the selection by
lot. The policies and procedures shall include, but not be limited to,
those for notifying persons selected and for providing a new selection
from a congressional district if a person selected from the district
declines appointment to the commission or if, following the person's
appointment, the person's position on the commission becomes vacant
before the end of the person's term of office.
(2) The remaining seven of the sixteen commission members, all
residents of this state, shall be selected jointly by the speaker of
the house of representatives and the president of the senate. The
persons selected under this subsection shall have had experience in the
field of personnel management. Of these seven members, one shall be
selected from each of the following five sectors in this state:
Private institutions of higher education; business; professional
personnel management; legal profession; and organized labor. Of the
two remaining members, one shall be a person recommended to the speaker
and the president by the chair of the Washington personnel resources
board and one shall be a person recommended by majority vote of the
presidents of the state's four-year institutions of higher education.
(3) The secretary of state shall forward the names of persons
selected under subsection (1) of this section and the speaker of the
house of representatives and president of the senate shall forward the
names of persons selected under subsection (2) of this section to the
governor who shall appoint these persons to the commission. Except as
provided in subsection (6) of this section, the names of persons
selected for appointment to the commission shall be forwarded to the
governor not later than February 15, 1987, and not later than the
fifteenth day of February every four years through 1999. The terms of
the members selected in 1999 shall terminate July 1, 2002, and the
names of persons selected for appointment to the commission shall be
forwarded to the governor not later than July 1, 2002. Of the sixteen
names forwarded to the governor in 2002, the governor shall by lot
select four of the persons selected under subsection (1) of this
section and four of the persons selected under subsection (2) of this
section to serve two-year terms, with the rest of the members serving
four-year terms. Thereafter, except as provided in subsection (6) of
this section, all members shall serve four-year terms and the names of
eight persons selected for appointment to the commission shall be
forwarded to the governor not later than the first day of July every
two years.
(4) No person may be appointed to more than two terms. No member
of the commission may be removed by the governor during his or her term
of office unless for cause of incapacity, incompetence, neglect of
duty, or malfeasance in office or for a disqualifying change of
residence.
The unexcused absence of any person who is a member of the
commission from two consecutive meetings of the commission shall
constitute the relinquishment of that person's membership on the
commission. Such a relinquishment creates a vacancy in that person's
position on the commission. A member's absence may be excused by the
chair of the commission upon the member's written request if the chair
believes there is just cause for the absence. Such a request must be
received by the chair before the meeting for which the absence is to be
excused. A member's absence from a meeting of the commission may also
be excused during the meeting for which the member is absent by the
affirmative vote of a majority of the members of the commission present
at the meeting.
(5) No state official, public employee, or lobbyist, or immediate
family member of the official, employee, or lobbyist, subject to the
registration requirements of chapter 42.17 RCW is eligible for
membership on the commission.
As used in this subsection the phrase "immediate family" means the
parents, spouse or domestic partner, siblings, children, or dependent
relative of the official, employee, or lobbyist whether or not living
in the household of the official, employee, or lobbyist.
(6) Upon a vacancy in any position on the commission, a successor
shall be selected and appointed to fill the unexpired term. The
selection and appointment shall be concluded within thirty days of the
date the position becomes vacant and shall be conducted in the same
manner as originally provided.
Sec. 301 RCW 43.185A.010 and 2000 c 255 s 9 are each amended to
read as follows:
Unless the context clearly requires otherwise, the definitions in
this section apply throughout this chapter.
(1) "Affordable housing" means residential housing for rental
occupancy which, as long as the same is occupied by low-income
households, requires payment of monthly housing costs, including
utilities other than telephone, of no more than thirty percent of the
family's income. The department shall adopt policies for residential
homeownership housing, occupied by low-income households, which specify
the percentage of family income that may be spent on monthly housing
costs, including utilities other than telephone, to qualify as
affordable housing.
(2) "Department" means the department of community, trade, and
economic development.
(3) "Director" means the director of the department of community,
trade, and economic development.
(4) "First-time home buyer" means an individual or his or her
spouse or domestic partner who have not owned a home during the three-year period prior to purchase of a home.
(5) "Low-income household" means a single person, family or
unrelated persons living together whose adjusted income is less than
eighty percent of the median family income, adjusted for household
size, for the county where the project is located.
Sec. 302 RCW 43.20B.080 and 2005 c 292 s 6 are each amended to
read as follows:
(1) The department shall file liens, seek adjustment, or otherwise
effect recovery for medical assistance correctly paid on behalf of an
individual consistent with 42 U.S.C. Sec. 1396p. The department shall
adopt a rule providing for prior notice and hearing rights to the
record title holder or purchaser under a land sale contract.
(2) Liens may be adjusted by foreclosure in accordance with chapter
61.12 RCW.
(3) In the case of an individual who was fifty-five years of age or
older when the individual received medical assistance, the department
shall seek adjustment or recovery from the individual's estate, and
from nonprobate assets of the individual as defined by RCW 11.02.005,
but only for medical assistance consisting of nursing facility
services, home and community-based services, other services that the
department determines to be appropriate, and related hospital and
prescription drug services. Recovery from the individual's estate,
including foreclosure of liens imposed under this section, shall be
undertaken as soon as practicable, consistent with 42 U.S.C. Sec.
1396p.
(4) The department shall apply the medical assistance estate
recovery law as it existed on the date that benefits were received when
calculating an estate's liability to reimburse the department for those
benefits.
(5)(a) The department shall establish procedures consistent with
standards established by the federal department of health and human
services and pursuant to 42 U.S.C. Sec. 1396p to waive recovery when
such recovery would work an undue hardship. The department shall
recognize an undue hardship for a surviving domestic partner whenever
recovery would not have been permitted if he or she had been a
surviving spouse. The department is not authorized to pursue recovery
under such circumstances.
(b) Recovery of medical assistance from a recipient's estate shall
not include property made exempt from claims by federal law or treaty,
including exemption for tribal artifacts that may be held by individual
Native Americans.
(6) A lien authorized under this section relates back to attach to
any real property that the decedent had an ownership interest in
immediately before death and is effective as of that date or date of
recording, whichever is earlier.
(7) The department may enforce a lien authorized under this section
against a decedent's life estate or joint tenancy interest in real
property held by the decedent immediately prior to his or her death.
Such a lien enforced under this subsection shall not end and shall
continue as provided in this subsection until the department's lien has
been satisfied.
(a) The value of the life estate subject to the lien shall be the
value of the decedent's interest in the property subject to the life
estate immediately prior to the decedent's death.
(b) The value of the joint tenancy interest subject to the lien
shall be the value of the decedent's fractional interest the recipient
would have owned in the jointly held interest in the property had the
recipient and the surviving joint tenants held title to the property as
tenants in common on the date of the recipient's death.
(c) The department may not enforce the lien provided by this
subsection against a bona fide purchaser or encumbrancer that obtains
an interest in the property after the death of the recipient and before
the department records either its lien or the request for notice of
transfer or encumbrance as provided by RCW 43.20B.750.
(d) The department may not enforce a lien provided by this
subsection against any property right that vested prior to July 1,
2005.
(8)(a) Subject to the requirements of 42 U.S.C. Sec. 1396p(a) and
the conditions of this subsection (8), the department is authorized to
file a lien against the property of an individual prior to his or her
death, and to seek adjustment and recovery from the individual's estate
or sale of the property subject to the lien, if:
(i) The individual is an inpatient in a nursing facility,
intermediate care facility for individuals with mental retardation, or
other medical institution; and
(ii) The department has determined after notice and opportunity for
a hearing that the individual cannot reasonably be expected to be
discharged from the medical institution and to return home.
(b) If the individual is discharged from the medical facility and
returns home, the department shall dissolve the lien.
(9) The department is authorized to adopt rules to effect recovery
under this section. The department may adopt by rule later enactments
of the federal laws referenced in this section.
(10) It is the responsibility of the department to fully disclose
in advance verbally and in writing, in easy to understand language, the
terms and conditions of estate recovery to all persons offered long-term care services subject to recovery of payments.
(11) In disclosing estate recovery costs to potential clients, and
to family members at the consent of the client, the department shall
provide a written description of the community service options.
Sec. 303 RCW 70.123.020 and 1991 c 301 s 9 are each amended to
read as follows:
Unless the context clearly requires otherwise, the definitions in
this section apply throughout this chapter.
(1) "Shelter" means a place of temporary refuge, offered on a
twenty-four hour, seven day per week basis to victims of domestic
violence and their children.
(2) "Domestic violence" is a categorization of offenses, as defined
in RCW 10.99.020, committed by one cohabitant against another.
(3) "Department" means the department of social and health
services.
(4) "Victim" means a cohabitant who has been subjected to domestic
violence.
(5) "Cohabitant" means a person who is or was married, in a state
registered domestic partnership, or ((who is)) cohabiting with ((a))
another person ((of the opposite sex like husband and wife)) in an
intimate or dating relationship at the present or at sometime in the
past. Any person who has one or more children in common with another
person, regardless of whether they have been married, in a domestic
partnership with each other, or lived together at any time, shall be
treated as a cohabitant.
(6) "Community advocate" means a person employed by a local
domestic violence program to provide ongoing assistance to victims of
domestic violence in assessing safety needs, documenting the incidents
and the extent of violence for possible use in the legal system, making
appropriate social service referrals, and developing protocols and
maintaining ongoing contacts necessary for local systems coordination.
(7) "Domestic violence program" means an agency that provides
shelter, advocacy, and counseling for domestic violence victims in a
supportive environment.
(8) "Legal advocate" means a person employed by a domestic violence
program or court system to advocate for victims of domestic violence,
within the criminal and civil justice systems, by attending court
proceedings, assisting in document and case preparation, and ensuring
linkage with the community advocate.
(9) "Secretary" means the secretary of the department of social and
health services or the secretary's designee.
Sec. 304 RCW 70.129.140 and 1994 c 214 s 15 are each amended to
read as follows:
(1) The facility must promote care for residents in a manner and in
an environment that maintains or enhances each resident's dignity and
respect in full recognition of his or her individuality.
(2) Within reasonable facility rules designed to protect the rights
and quality of life of residents, the resident has the right to:
(a) Choose activities, schedules, and health care consistent with
his or her interests, assessments, and plans of care;
(b) Interact with members of the community both inside and outside
the facility;
(c) Make choices about aspects of his or her life in the facility
that are significant to the resident;
(d) Wear his or her own clothing and determine his or her own
dress, hair style, or other personal effects according to individual
preference;
(e) Unless adjudged incompetent or otherwise found to be legally
incapacitated, participate in planning care and treatment or changes in
care and treatment;
(f) Unless adjudged incompetent or otherwise found to be legally
incapacitated, to direct his or her own service plan and changes in the
service plan, and to refuse any particular service so long as such
refusal is documented in the record of the resident.
(3)(a) A resident has the right to organize and participate in
resident groups in the facility.
(b) A resident's family has the right to meet in the facility with
the families of other residents in the facility.
(c) The facility must provide a resident or family group, if one
exists, with meeting space.
(d) Staff or visitors may attend meetings at the group's
invitation.
(e) When a resident or family group exists, the facility must
listen to the views and act upon the grievances and recommendations of
residents and families concerning proposed policy and operational
decisions affecting resident care and life in the facility.
(f) The resident has the right to refuse to perform services for
the facility except as voluntarily agreed by the resident and the
facility in the resident's service plan.
(4) A resident has the right to participate in social, religious,
and community activities that do not interfere with the rights of other
residents in the facility.
(5) A resident has the right to:
(a) Reside and receive services in the facility with reasonable
accommodation of individual needs and preferences, except when the
health or safety of the individual or other residents would be
endangered; and
(b) Receive notice before the resident's room or roommate in the
facility is changed.
(6) A resident has the right to share a double room with his or her
spouse or domestic partner when ((married)) residents who are married
to each other or in a domestic partnership with each other live in the
same facility and both spouses or both domestic partners consent to the
arrangement.
Sec. 305 RCW 74.42.070 and 1979 ex.s. c 211 s 7 are each amended
to read as follows:
Residents shall be given privacy during treatment and care of
personal needs. ((Married)) Residents who are spouses or domestic
partners shall be given privacy during visits with their spouses or
their domestic partners. If both ((husband and wife)) spouses or both
domestic partners are residents of the facility, the facility shall
permit the ((husband and wife)) spouses or domestic partners to share
a room, unless medically contraindicated.
Sec. 401 RCW 4.22.020 and 1987 c 212 s 801 are each amended to
read as follows:
The contributory fault of one spouse or one domestic partner shall
not be imputed to the other spouse or other domestic partner or the
minor child of the spouse or domestic partner to diminish recovery in
an action by the other spouse or other domestic partner or the minor
child of the spouse or other domestic partner, or his or her legal
representative, to recover damages caused by fault resulting in death
or in injury to the person or property, whether separate or community,
of the spouse or domestic partner. In an action brought for wrongful
death or loss of consortium, the contributory fault of the decedent or
injured person shall be imputed to the claimant in that action.
Sec. 402 RCW 5.60.060 and 2007 c 472 s 1 are each amended to read
as follows:
(1) A ((husband)) spouse or domestic partner shall not be examined
for or against his ((wife)) or her spouse or domestic partner, without
the consent of the ((wife, nor a wife for or against her husband
without the consent of the husband)) spouse or domestic partner; nor
can either during marriage or during the domestic partnership or
afterward, be without the consent of the other, examined as to any
communication made by one to the other during the marriage or the
domestic partnership. But this exception shall not apply to a civil
action or proceeding by one against the other, nor to a criminal action
or proceeding for a crime committed by one against the other, nor to a
criminal action or proceeding against a spouse or domestic partner if
the marriage or the domestic partnership occurred subsequent to the
filing of formal charges against the defendant, nor to a criminal
action or proceeding for a crime committed by said ((husband or wife))
spouse or domestic partner against any child of whom said ((husband or
wife)) spouse or domestic partner is the parent or guardian, nor to a
proceeding under chapter 70.96A, 70.96B, 71.05, or 71.09 RCW:
PROVIDED, That the spouse or the domestic partner of a person sought to
be detained under chapter 70.96A, 70.96B, 71.05, or 71.09 RCW may not
be compelled to testify and shall be so informed by the court prior to
being called as a witness.
(2)(a) An attorney or counselor shall not, without the consent of
his or her client, be examined as to any communication made by the
client to him or her, or his or her advice given thereon in the course
of professional employment.
(b) A parent or guardian of a minor child arrested on a criminal
charge may not be examined as to a communication between the child and
his or her attorney if the communication was made in the presence of
the parent or guardian. This privilege does not extend to
communications made prior to the arrest.
(3) A member of the clergy, a Christian Science practitioner listed
in the Christian Science Journal, or a priest shall not, without the
consent of a person making the confession or sacred confidence, be
examined as to any confession or sacred confidence made to him or her
in his or her professional character, in the course of discipline
enjoined by the church to which he or she belongs.
(4) Subject to the limitations under RCW 70.96A.140 or 71.05.360
(8) and (9), a physician or surgeon or osteopathic physician or surgeon
or podiatric physician or surgeon shall not, without the consent of his
or her patient, be examined in a civil action as to any information
acquired in attending such patient, which was necessary to enable him
or her to prescribe or act for the patient, except as follows:
(a) In any judicial proceedings regarding a child's injury,
neglect, or sexual abuse or the cause thereof; and
(b) Ninety days after filing an action for personal injuries or
wrongful death, the claimant shall be deemed to waive the physician-patient privilege. Waiver of the physician-patient privilege for any
one physician or condition constitutes a waiver of the privilege as to
all physicians or conditions, subject to such limitations as a court
may impose pursuant to court rules.
(5) A public officer shall not be examined as a witness as to
communications made to him or her in official confidence, when the
public interest would suffer by the disclosure.
(6)(a) A peer support group counselor shall not, without consent of
the law enforcement officer or firefighter making the communication, be
compelled to testify about any communication made to the counselor by
the officer or firefighter while receiving counseling. The counselor
must be designated as such by the sheriff, police chief, fire chief, or
chief of the Washington state patrol, prior to the incident that
results in counseling. The privilege only applies when the
communication was made to the counselor while acting in his or her
capacity as a peer support group counselor. The privilege does not
apply if the counselor was an initial responding officer or
firefighter, a witness, or a party to the incident which prompted the
delivery of peer support group counseling services to the law
enforcement officer or firefighter.
(b) For purposes of this section, "peer support group counselor"
means a:
(i) Law enforcement officer, firefighter, civilian employee of a
law enforcement agency, or civilian employee of a fire department, who
has received training to provide emotional and moral support and
counseling to an officer or firefighter who needs those services as a
result of an incident in which the officer or firefighter was involved
while acting in his or her official capacity; or
(ii) Nonemployee counselor who has been designated by the sheriff,
police chief, fire chief, or chief of the Washington state patrol to
provide emotional and moral support and counseling to an officer or
firefighter who needs those services as a result of an incident in
which the officer or firefighter was involved while acting in his or
her official capacity.
(7) A sexual assault advocate may not, without the consent of the
victim, be examined as to any communication made between the victim and
the sexual assault advocate.
(a) For purposes of this section, "sexual assault advocate" means
the employee or volunteer from a rape crisis center, victim assistance
unit, program, or association, that provides information, medical or
legal advocacy, counseling, or support to victims of sexual assault,
who is designated by the victim to accompany the victim to the hospital
or other health care facility and to proceedings concerning the alleged
assault, including police and prosecution interviews and court
proceedings.
(b) A sexual assault advocate may disclose a confidential
communication without the consent of the victim if failure to disclose
is likely to result in a clear, imminent risk of serious physical
injury or death of the victim or another person. Any sexual assault
advocate participating in good faith in the disclosing of records and
communications under this section shall have immunity from any
liability, civil, criminal, or otherwise, that might result from the
action. In any proceeding, civil or criminal, arising out of a
disclosure under this section, the good faith of the sexual assault
advocate who disclosed the confidential communication shall be
presumed.
(8) A domestic violence advocate may not, without the consent of
the victim, be examined as to any communication between the victim and
the domestic violence advocate.
(a) For purposes of this section, "domestic violence advocate"
means an employee or supervised volunteer from a community-based
domestic violence program or human services program that provides
information, advocacy, counseling, crisis intervention, emergency
shelter, or support to victims of domestic violence and who is not
employed by, or under the direct supervision of, a law enforcement
agency, a prosecutor's office, or the child protective services section
of the department of social and health services as defined in RCW
26.44.020.
(b) A domestic violence advocate may disclose a confidential
communication without the consent of the victim if failure to disclose
is likely to result in a clear, imminent risk of serious physical
injury or death of the victim or another person. This section does not
relieve a domestic violence advocate from the requirement to report or
cause to be reported an incident under RCW 26.44.030(1) or to disclose
relevant records relating to a child as required by RCW
26.44.030(((11))) (12). Any domestic violence advocate participating
in good faith in the disclosing of communications under this subsection
is immune from liability, civil, criminal, or otherwise, that might
result from the action. In any proceeding, civil or criminal, arising
out of a disclosure under this subsection, the good faith of the
domestic violence advocate who disclosed the confidential communication
shall be presumed.
Sec. 403 RCW 5.66.010 and 2002 c 334 s 1 are each amended to read
as follows:
(1) The portion of statements, writings, or benevolent gestures
expressing sympathy or a general sense of benevolence relating to the
pain, suffering, or death of a person involved in an accident, and made
to that person or to the family of that person, shall be inadmissible
as evidence in a civil action. A statement of fault, however, which is
part of, or in addition to, any of the above shall not be made
inadmissible by this section.
(2) For purposes of this section:
(a) "Accident" means an occurrence resulting in injury or death to
one or more persons that is not the result of willful action by a
party.
(b) "Benevolent gestures" means actions that convey a sense of
compassion or commiseration emanating from humane impulses.
(c) "Family" means the spouse or the domestic partner, parent,
grandparent, stepmother, stepfather, child, grandchild, brother,
sister, half brother, half sister, adopted child of a parent, or
spouse's or domestic partner's parents of an injured party.
Sec. 404 RCW 7.69.020 and 1993 c 350 s 5 are each amended to read
as follows:
Unless the context clearly requires otherwise, the definitions in
this section apply throughout this chapter.
(1) "Crime" means an act punishable as a felony, gross misdemeanor,
or misdemeanor under the laws of this state or equivalent federal or
local law.
(2) "Survivor" or "survivors" of a victim of crime means a spouse
or domestic partner, child, parent, legal guardian, sibling, or
grandparent. If there is more than one survivor of a victim of crime,
one survivor shall be designated by the prosecutor to represent all
survivors for purposes of providing the notice to survivors required by
this chapter.
(3) "Victim" means a person against whom a crime has been committed
or the representative of a person against whom a crime has been
committed.
(4) "Victim impact statement" means a statement submitted to the
court by the victim or a survivor, individually or with the assistance
of the prosecuting attorney if assistance is requested by the victim or
survivor, which may include but is not limited to information assessing
the financial, medical, social, and psychological impact of the offense
upon the victim or survivors.
(5) "Witness" means a person who has been or is expected to be
summoned to testify for the prosecution in a criminal action, or who by
reason of having relevant information is subject to call or likely to
be called as a witness for the prosecution, whether or not an action or
proceeding has been commenced.
(6) "Crime victim/
Sec. 405 RCW 7.69B.010 and 2005 c 381 s 2 are each amended to
read as follows:
Unless the context clearly requires otherwise, the definitions in
this section apply throughout this chapter.
(1) "Crime" means an act punishable as a felony, gross misdemeanor,
or misdemeanor under the laws of this state or equivalent federal or
local law.
(2) "Dependent person" has the same meaning as that term is defined
in RCW 9A.42.010.
(3) "Victim" means a living person against whom a crime has been
committed.
(4) "Witness" means a person who has been or is expected to be
summoned to testify for the prosecution or defense in a criminal
action, or who by reason of having relevant information is subject to
call or likely to be called as a witness, whether or not an action or
proceeding has been commenced.
(5) "Family member" means a person who is not accused of a crime
and who is an adult child, adult sibling, spouse or domestic partner,
parent, or legal guardian of the dependent person.
(6) "Advocate" means any person not accused of a crime, including
a family member, approved by the witness or victim, in consultation
with his or her guardian if applicable, who provides support to a
dependent person during any legal proceeding.
(7) "Court proceedings" means any court proceeding conducted during
the course of the prosecution of a crime committed against a dependent
person, including pretrial hearings, trial, sentencing, or appellate
proceedings.
(8) "Identifying information" means the dependent person's name,
address, location, and photograph, and in cases in which the dependent
person is a relative of the alleged perpetrator, identification of the
relationship between the dependent person and the alleged perpetrator.
(9) "Crime victim/witness program" means any crime victim and
witness program of a county or local law enforcement agency or
prosecutor's office, any rape crisis center's sexual assault victim
advocacy program as provided in chapter 70.125 RCW, any domestic
violence program's legal and community advocate program for domestic
violence victims as provided in chapter 70.123 RCW, or any other crime
victim advocacy program which provides trained advocates to assist
crime victims during the investigation and prosecution of the crime.
Sec. 406 RCW 26.50.010 and 1999 c 184 s 13 are each amended to
read as follows:
As used in this chapter, the following terms shall have the
meanings given them:
(1) "Domestic violence" means: (a) Physical harm, bodily injury,
assault, or the infliction of fear of imminent physical harm, bodily
injury or assault, between family or household members; (b) sexual
assault of one family or household member by another; or (c) stalking
as defined in RCW 9A.46.110 of one family or household member by
another family or household member.
(2) "Family or household members" means spouses, domestic partners,
former spouses, former domestic partners, persons who have a child in
common regardless of whether they have been married or have lived
together at any time, adult persons related by blood or marriage, adult
persons who are presently residing together or who have resided
together in the past, persons sixteen years of age or older who are
presently residing together or who have resided together in the past
and who have or have had a dating relationship, persons sixteen years
of age or older with whom a person sixteen years of age or older has or
has had a dating relationship, and persons who have a biological or
legal parent-child relationship, including stepparents and stepchildren
and grandparents and grandchildren.
(3) "Dating relationship" means a social relationship of a romantic
nature. Factors that the court may consider in making this
determination include: (a) The length of time the relationship has
existed; (b) the nature of the relationship; and (c) the frequency of
interaction between the parties.
(4) "Court" includes the superior, district, and municipal courts
of the state of Washington.
(5) "Judicial day" does not include Saturdays, Sundays, or legal
holidays.
(6) "Electronic monitoring" means a program in which a person's
presence at a particular location is monitored from a remote location
by use of electronic equipment.
(7) "Essential personal effects" means those items necessary for a
person's immediate health, welfare, and livelihood. "Essential
personal effects" includes but is not limited to clothing, cribs,
bedding, documents, medications, and personal hygiene items.
Sec. 407 RCW 4.08.030 and 1972 ex.s. c 108 s 1 are each amended
to read as follows:
Either ((husband or wife)) spouse or either domestic partner may
sue on behalf of the community: PROVIDED, That
(1) When the action is for personal injuries, the spouse or the
domestic partner having sustained personal injuries is a necessary
party;
(2) When the action is for compensation for services rendered, the
spouse or the domestic partner having rendered the services is a
necessary party.
Sec. 408 RCW 4.08.040 and 1972 ex.s. c 108 s 2 are each amended
to read as follows:
((Husband and wife)) Either spouse or either domestic partner may
join in all causes of action arising from injuries to the person or
character of either or both of them, or from injuries to the property
of either or both of them, or arising out of any contract in favor of
either or both of them.
If ((a husband and wife be)) the spouses or the domestic partners
are sued together, either or both spouses or either or both domestic
partners may defend, and if one spouse or one domestic partner neglects
to defend, the other spouse or other domestic partner may defend for
the nonacting spouse or nonacting domestic partner also. ((And)) Each
spouse or each domestic partner may defend in all cases in which he or
she is interested, whether that spouse or that domestic partner is sued
with the other spouse or other domestic partner or not.
Sec. 409 RCW 4.20.046 and 1993 c 44 s 1 are each amended to read
as follows:
(1) All causes of action by a person or persons against another
person or persons shall survive to the personal representatives of the
former and against the personal representatives of the latter, whether
such actions arise on contract or otherwise, and whether or not such
actions would have survived at the common law or prior to the date of
enactment of this section: PROVIDED, HOWEVER, That the personal
representative shall only be entitled to recover damages for pain and
suffering, anxiety, emotional distress, or humiliation personal to and
suffered by a deceased on behalf of those beneficiaries enumerated in
RCW 4.20.020, and such damages are recoverable regardless of whether or
not the death was occasioned by the injury that is the basis for the
action. The liability of property of ((a husband and wife)) spouses or
domestic partners held by them as community property to execution in
satisfaction of a claim enforceable against such property so held shall
not be affected by the death of either or both spouses or either or
both domestic partners; and a cause of action shall remain an asset as
though both claiming spouses or both claiming domestic partners
continued to live despite the death of either or both claiming spouses
or both claiming domestic partners.
(2) Where death or an injury to person or property, resulting from
a wrongful act, neglect or default, occurs simultaneously with or after
the death of a person who would have been liable therefor if his or her
death had not occurred simultaneously with such death or injury or had
not intervened between the wrongful act, neglect or default and the
resulting death or injury, an action to recover damages for such death
or injury may be maintained against the personal representative of such
person.
Sec. 501 RCW 28B.15.621 and 2007 c 450 s 1 are each amended to
read as follows:
(1) The legislature finds that active military and naval veterans,
reserve military and naval veterans, and national guard members called
to active duty have served their country and have risked their lives to
defend the lives of all Americans and the freedoms that define and
distinguish our nation. The legislature intends to honor active
military and naval veterans, reserve military and naval veterans, and
national guard members who have served on active military or naval duty
for the public service they have provided to this country.
(2) Subject to the limitations in RCW 28B.15.910, the governing
boards of the state universities, the regional universities, The
Evergreen State College, and the community colleges, may waive all or
a portion of tuition and fees for an eligible veteran or national guard
member.
(3) The governing boards of the state universities, the regional
universities, The Evergreen State College, and the community colleges,
may waive all or a portion of tuition and fees for a military or naval
veteran who is a Washington domiciliary, but who did not serve on
foreign soil or in international waters or in another location in
support of those serving on foreign soil or in international waters and
who does not qualify as an eligible veteran or national guard member
under subsection (8) of this section. However, there shall be no state
general fund support for waivers granted under this subsection.
(4) Subject to the conditions in subsection (5) of this section,
the governing boards of the state universities, the regional
universities, The Evergreen State College, and the community colleges,
shall waive all tuition and fees for the following persons:
(a) A child and the spouse or the domestic partner or surviving
spouse or surviving domestic partner of an eligible veteran or national
guard member who became totally disabled as defined in RCW 28B.15.385
while engaged in active federal military or naval service, or who is
determined by the federal government to be a prisoner of war or missing
in action; and
(b) A child and the surviving spouse or surviving domestic partner
of an eligible veteran or national guard member who lost his or her
life while engaged in active federal military or naval service.
(5) The conditions in this subsection (5) apply to waivers under
subsection (4) of this section.
(a) A child must be a Washington domiciliary between the age of
seventeen and twenty-six to be eligible for the tuition waiver. A
child's marital status does not affect eligibility.
(b) A surviving spouse or surviving domestic partner must be a
Washington domiciliary. A surviving spouse or surviving domestic
partner has ten years from the date of the death, total disability as
defined in RCW 28B.15.385, or federal determination of prisoner of war
or missing in action status of the eligible veteran or national guard
member to receive the benefit. Upon remarriage or registration in a
subsequent domestic partnership, the surviving spouse or surviving
domestic partner is ineligible for the waiver of all tuition and fees.
(c) Each recipient's continued participation is subject to the
school's satisfactory progress policy.
(6) Required waivers of all tuition and fees under subsection (4)
of this section shall not affect permissive waivers of tuition and fees
under subsection (3) of this section.
(7) Private vocational schools and private higher education
institutions are encouraged to provide waivers consistent with the
terms in subsections (2) through (5) of this section.
(8) The definitions in this subsection apply throughout this
section.
(a) "Eligible veteran or national guard member" means a Washington
domiciliary who was an active or reserve member of the United States
military or naval forces, or a national guard member called to active
duty, who served in active federal service, under either Title 10 or
Title 32 of the United States Code, in a war or conflict fought on
foreign soil or in international waters or in another location in
support of those serving on foreign soil or in international waters,
and if discharged from service, has received an honorable discharge.
(b) "Washington domiciliary" means a person whose true, fixed, and
permanent house and place of habitation is the state of Washington.
"Washington domiciliary" includes a person who is residing in rental
housing or residing in base housing. In ascertaining whether a child
or surviving spouse or surviving domestic partner is domiciled in the
state of Washington, public institutions of higher education shall, to
the fullest extent possible, rely upon the standards provided in RCW
28B.15.013.
Sec. 502 RCW 73.08.005 and 2005 c 250 s 2 are each amended to
read as follows:
The definitions in this section apply throughout this chapter
unless the context clearly requires otherwise.
(1) "Direct costs" includes those allowable costs that can be
readily assigned to the statutory objectives of this chapter,
consistent with the cost principles promulgated by the federal office
of management and budget in circular No. A-87, dated May 10, 2004.
(2) "Family" means the spouse or domestic partner, ((widow,
widower)) surviving spouse, surviving domestic partner, and dependent
children of a living or deceased veteran.
(3) "Indigent" means a person who is defined as such by the county
legislative authority using one or more of the following definitions:
(a) Receiving one of the following types of public assistance:
Temporary assistance for needy families, general assistance, poverty-related veterans' benefits, food stamps or food stamp benefits
transferred electronically, refugee resettlement benefits, medicaid, or
supplemental security income;
(b) Receiving an annual income, after taxes, of up to one hundred
fifty percent or less of the current federally established poverty
level, or receiving an annual income not exceeding a higher qualifying
income established by the county legislative authority; or
(c) Unable to pay reasonable costs for shelter, food, utilities,
and transportation because his or her available funds are insufficient.
(4) "Indirect costs" includes those allowable costs that are
generally associated with carrying out the statutory objectives of this
chapter, but the identification and tracking of those costs cannot be
readily assigned to a specific statutory objective without an
accounting effort that is disproportionate to the benefit received. A
county legislative authority may allocate allowable indirect costs to
its veterans' assistance fund if it is accomplished in a manner
consistent with the cost principles promulgated by the federal office
of management and budget in circular No. A-87, dated May 10, 2004.
(5) "Veteran" has the same meaning as defined in RCW 41.04.005 and
41.04.007.
(6) "Veterans' advisory board" means a board established by a
county legislative authority under the authority of RCW 73.08.035.
(7) "Veterans' assistance fund" means an account in the custody of
the county auditor, or the chief financial officer in a county
operating under a charter, that is funded by taxes levied under the
authority of RCW 73.08.080.
(8) "Veterans' assistance program" means a program approved by the
county legislative authority under the authority of RCW 73.08.010 that
is fully or partially funded by the veterans' assistance fund
authorized by RCW 73.08.080.
Sec. 503 RCW 72.36.030 and 1998 c 322 s 49 are each amended to
read as follows:
All of the following persons who have been actual bona fide
residents of this state at the time of their application, and who are
indigent and unable to support themselves and their families may be
admitted to a state veterans' home under rules as may be adopted by the
director of the department, unless sufficient facilities and resources
are not available to accommodate these people:
(1)(a) All honorably discharged veterans of a branch of the armed
forces of the United States or merchant marines; (b) members of the
state militia disabled while in the line of duty; (c) Filipino World
War II veterans who swore an oath to American authority and who
participated in military engagements with American soldiers; and (d)
the spouses or the domestic partners of these veterans, merchant
marines, and members of the state militia. However, it is required
that the spouse was married to and living with the veteran, or that the
domestic partner was in a domestic partnership and living with the
veteran, three years prior to the date of application for admittance,
or, if married to or in a domestic partnership with him or her since
that date, was also a resident of a state veterans' home in this state
or entitled to admission thereto;
(2)(a) The spouses or domestic partners of: (i) All honorably
discharged veterans of the United States armed forces; (ii) merchant
marines; and (iii) members of the state militia who were disabled while
in the line of duty and who were residents of a state veterans' home in
this state or were entitled to admission to one of this state's state
veteran homes at the time of death; (b) the spouses or domestic
partners of: (i) All honorably discharged veterans of a branch of the
United States armed forces; (ii) merchant marines; and (iii) members of
the state militia who would have been entitled to admission to one of
this state's state veterans' homes at the time of death, but for the
fact that the spouse or domestic partner was not indigent, but has
since become indigent and unable to support himself or herself and his
or her family. However, the included spouse or included domestic
partner shall be at least fifty years old and have been married to and
living with their ((husband or wife)) spouse, or in a domestic
partnership and living with their domestic partner, for three years
prior to the date of their application. The included spouse or
included domestic partner shall not have been married since the death
of his or her ((husband or wife)) spouse or domestic partner to a
person who is not a resident of one of this state's state veterans'
homes or entitled to admission to one of this state's state veterans'
homes; and
(3) All applicants for admission to a state veterans' home shall
apply for all federal and state benefits for which they may be
eligible, including medical assistance under chapter 74.09 RCW.
Sec. 504 RCW 72.36.040 and 1977 ex.s. c 186 s 2 are each amended
to read as follows:
There is hereby established what shall be known as the "Colony of
the State Soldiers' Home." All of the following persons who reside
within the limits of Orting school district and have been actual bona
fide residents of this state at the time of their application and who
have personal property of less than one thousand five hundred dollars
and/or a monthly income insufficient to meet their needs outside of
residence in such colony and soldiers' home as determined by standards
of the department of veterans' affairs, may be admitted to membership
in said colony under such rules and regulations as may be adopted by
the department.
(1) All honorably discharged veterans who have served in the armed
forces of the United States during wartime, members of the state
militia disabled while in the line of duty, and their respective
spouses or domestic partners with whom they have lived for three years
prior to application for membership in said colony. Also, the spouse
or domestic partner of any such veteran or disabled member of the state
militia is eligible for membership in said colony, if such spouse or
such domestic partner is the ((widow or widower)) surviving spouse or
surviving domestic partner of a veteran who was a member of a soldiers'
home or colony in this state or entitled to admission thereto at the
time of death: PROVIDED, That such veterans and members of the state
militia shall, while they are members of said colony, be living with
their said spouses or said domestic partners.
(2) The spouses or domestic partners of all veterans who were
members of a soldiers' home or colony in this state or entitled to
admission thereto at the time of death, and the spouses or domestic
partners of all veterans who would have been entitled to admission to
a soldiers' home or colony in this state at the time of death but for
the fact that they were not indigent and unable to support themselves
and families, which spouses or domestic partners have since the death
of their said ((husbands or wives)) spouses or domestic partners become
indigent and unable to earn a support for themselves: PROVIDED, That
such spouses or such domestic partners are not less than fifty years of
age and have not been married or in a domestic partnership since the
decease of their said ((husbands or wives)) spouses or said domestic
partners to any person not a member of a soldiers' home or colony in
this state or entitled to admission thereto. Any resident of said
colony may be admitted to the state soldiers' home for temporary care
when requiring treatment.
Sec. 505 RCW 72.36.050 and 1979 c 65 s 1 are each amended to read
as follows:
The members of the colony established in RCW 72.36.040 as now or
hereafter amended shall, to all intents and purposes, be members of the
state soldiers' home and subject to all the rules and regulations
thereof, except the requirements of fatigue duty, and each member
shall, in accordance with rules and regulations adopted by the
director, be supplied with medical attendance and supplies from the
home dispensary, rations, and clothing for a member and his or her
spouse or domestic partner, or for a spouse or domestic partner
admitted under RCW 72.36.040 as now or hereafter amended. The value of
the supplies, rations, and clothing furnished such persons shall be
determined by the director of veterans affairs and be included in the
biennial budget.
Sec. 506 RCW 72.36.070 and 1977 ex.s. c 186 s 4 are each amended
to read as follows:
There shall be established and maintained in this state a branch of
the state soldiers' home, under the name of the "Washington veterans'
home," which branch shall be a home for honorably discharged veterans
who have served the United States government in any of its wars,
members of the state militia disabled while in the line of duty, and
who are bona fide citizens of the state, and also the spouses or
domestic partners of such veterans.
Sec. 507 RCW 72.36.110 and 1959 c 120 s 1 are each amended to
read as follows:
The superintendent of the Washington veterans' home and the
superintendent of the Washington soldiers' home and colony are hereby
authorized to provide for the burial of deceased members in the
cemeteries provided at the Washington veterans' home and Washington
soldiers' home: PROVIDED, That this section shall not be construed to
prevent any relative from assuming jurisdiction of such deceased
persons: PROVIDED FURTHER, That the superintendent of the Washington
soldiers' home and colony is hereby authorized to provide for the
burial of ((husbands and wives)) spouses or domestic partners of
members of the colony of the Washington soldiers' home.
Sec. 508 RCW 73.04.120 and 1985 c 44 s 19 are each amended to
read as follows:
County clerks and county auditors, respectively, are authorized and
directed to furnish free of charge to the legal representative,
surviving spouse or surviving domestic partner, child or parent of any
deceased veteran certified copies of marriage certificates, decrees of
((divorce)) dissolution of marriage or domestic partnership, or
annulment, or other documents contained in their files and to record
and issue, free of charge, certified copies of such documents from
other states, territories, or foreign countries affecting the marital
status of such veteran whenever any such document shall be required in
connection with any claim pending before the United States veterans'
bureau or other governmental agency administering benefits to war
veterans. Where these same documents are required of service personnel
of the armed forces of the United States for determining entitlement to
family allowances and other benefits, they shall be provided without
charge by county clerks and county auditors upon request of the person
in the service or his dependents.
Sec. 509 RCW 73.36.140 and 1951 c 53 s 14 are each amended to
read as follows:
A guardian shall not apply any portion of the income or the estate
for the support or maintenance of any person including the ward, the
spouse or the domestic partner, and the minor children of the ward,
except upon petition to and prior order of the court after a hearing.
A signed duplicate or certified copy of said petition shall be
furnished the proper office of the veterans administration and notice
of hearing thereon shall be given said office as provided in the case
of hearing on a guardian's account or other pleading.
Sec. 510 RCW 73.04.010 and 1973 1st ex.s. c 154 s 106 are each
amended to read as follows:
No judge, or clerk of court, county clerk, county auditor, or any
other county officer, shall be allowed to charge any honorably
discharged soldier or seaman, or the spouse or domestic partner,
orphan, or legal representative thereof, any fee for administering any
oath, or giving any official certificate for the procuring of any
pension, bounty, or back pay, nor for administering any oath or oaths
and giving the certificate required upon any voucher for collection of
periodical dues from the pension agent, nor any fee for services
rendered in perfecting any voucher.
Sec. 511 RCW 73.04.115 and 2005 c 216 s 5 are each amended to
read as follows:
(1) The department shall issue to the surviving spouse or surviving
domestic partner of any deceased former prisoner of war described in
RCW 73.04.110(((2))) (1)(b), one set of regular or special license
plates for use on a personal passenger vehicle registered to that
person.
(2) The plates shall be issued without the payment of any license
fees or excise tax on the vehicle. Whenever any person who has been
issued license plates under this section applies to the department for
transfer of the plates to a subsequently acquired motor vehicle, a
transfer fee of five dollars shall be charged in addition to all other
appropriate fees. If the surviving spouse remarries or the surviving
domestic partner registers in a new domestic partnership, he or she
shall return the special plates to the department within fifteen days
and apply for regular license plates.
(3) For purposes of this section, the term "special license plates"
does not include any plate from the armed forces license plate
collection established in RCW 46.16.30920.
NEW SECTION. Sec. 601 A new section is added to chapter 26.60
RCW to read as follows:
Any community property rights of domestic partners established by
this act shall apply from the date of the initial registration of the
domestic partnership, regardless of whether the date of registration
occurred before the effective date of this section.
Sec. 602 RCW 26.16.010 and Code 1881 s 2408 are each amended to
read as follows:
Property and pecuniary rights owned by ((the husband)) a spouse
before marriage and that acquired by him or her afterwards by gift,
bequest, devise ((or)), descent, or inheritance, with the rents, issues
and profits thereof, shall not be subject to the debts or contracts of
his ((wife)) or her spouse, and he or she may manage, lease, sell,
convey, encumber or devise by will such property without ((the wife))
his or her spouse joining in such management, alienation or
encumbrance, as fully, and to the same ((effect)) extent or in the same
manner as though he or she were unmarried.
Sec. 603 RCW 26.16.020 and Code 1881 s 2400 are each amended to
read as follows:
((The)) Property and pecuniary rights ((of every married woman at
the time of her marriage)) owned by a person in a state registered
domestic partnership before registration of the domestic partnership or
afterwards acquired by gift, bequest, devise, descent, or inheritance,
with the rents, issues and profits thereof, shall not be subject to the
debts or contracts of ((her husband)) his or her domestic partner, and
he or she may manage, lease, sell, convey, encumber or devise by will
such property without his or her domestic partner joining in such
management, alienation, or encumbrance, as fully, to the same extent
and in the same manner ((that her husband can, property belonging to
him)) as though he or she were not in a state registered domestic
partnership.
Sec. 604 RCW 26.16.030 and 1981 c 304 s 1 are each amended to
read as follows:
Property not acquired or owned, as prescribed in RCW 26.16.010 and
26.16.020, acquired after marriage or after registration of a state
registered domestic partnership by either domestic partner or either
husband or wife or both, is community property. Either spouse or
either domestic partner, acting alone, may manage and control community
property, with a like power of disposition as the acting spouse or
domestic partner has over his or her separate property, except:
(1) Neither ((spouse)) person shall devise or bequeath by will more
than one-half of the community property.
(2) Neither ((spouse)) person shall give community property without
the express or implied consent of the other.
(3) Neither ((spouse)) person shall sell, convey, or encumber the
community real property without the other spouse or other domestic
partner joining in the execution of the deed or other instrument by
which the real estate is sold, conveyed, or encumbered, and such deed
or other instrument must be acknowledged by both spouses or both
domestic partners.
(4) Neither ((spouse)) person shall purchase or contract to
purchase community real property without the other spouse or other
domestic partner joining in the transaction of purchase or in the
execution of the contract to purchase.
(5) Neither ((spouse)) person shall create a security interest
other than a purchase money security interest as defined in RCW
62A.9-107 in, or sell, community household goods, furnishings, or
appliances, or a community mobile home unless the other spouse or other
domestic partner joins in executing the security agreement or bill of
sale, if any.
(6) Neither ((spouse)) person shall acquire, purchase, sell,
convey, or encumber the assets, including real estate, or the good will
of a business where both spouses or both domestic partners participate
in its management without the consent of the other: PROVIDED, That
where only one spouse or one domestic partner participates in such
management the participating spouse or participating domestic partner
may, in the ordinary course of such business, acquire, purchase, sell,
convey or encumber the assets, including real estate, or the good will
of the business without the consent of the nonparticipating spouse or
nonparticipating domestic partner.
Sec. 605 RCW 26.16.050 and 1888 c 27 s 1 are each amended to read
as follows:
A ((husband)) spouse or domestic partner may give, grant, sell or
convey directly to ((his wife, and a wife may give, grant, sell or
convey directly to her husband)) the other spouse or other domestic
partner his or her community right, title, interest or estate in all or
any portion of their community real property: And every deed made from
((husband to wife, or from wife to husband)) one spouse to the other or
one domestic partner to the other, shall operate to divest the real
estate therein recited from any or every claim or demand as community
property and shall vest the same in the grantee as separate
property(([. The])). The grantor in all such deeds, or the party
releasing such community interest or estate shall sign, seal, execute
and acknowledge the deed as a single person without the joinder therein
of the married party or party to a state registered domestic
partnership therein named as grantee: PROVIDED, HOWEVER, That the
conveyances or transfers hereby authorized shall not affect any
existing equity in favor of creditors of the grantor at the time of
such transfer, gift or conveyance. AND PROVIDED FURTHER, That any
deeds of gift conveyances or releases of community estate by or between
((husband and wife)) spouses or between domestic partners heretofore
made but in which ((the husband and wife)) both spouses or both
domestic partners have not joined as grantors, said deeds(([,])), where
made in good faith and without intent to hinder, delay or defraud
creditors(([,])), shall be and the same are hereby fully legalized as
valid and binding.
Sec. 606 RCW 26.16.060 and Code 1881 s 2403 are each amended to
read as follows:
A ((husband or wife)) spouse or domestic partner may constitute the
other his or her attorney-in-fact to manage, control or dispose of his
or her property with the same power of revocation or substitution as
could be exercised were they unmarried persons or were they not in a
state registered domestic partnership.
Sec. 607 RCW 26.16.070 and 1888 c 27 s 2 are each amended to read
as follows:
A ((husband or wife)) spouse or domestic partner may make and
execute powers of attorney for the sale, conveyance, transfer or
encumbrance of his or her separate estate both real and personal,
without the other spouse or other domestic partner joining in the
execution thereof. Such power of attorney shall be acknowledged and
certified in the manner provided by law for the conveyance of real
estate. Nor shall anything herein contained be so construed as to
prevent either ((husband or wife)) spouse or either domestic partner
from appointing the other his or her attorney-in-fact for the purposes
provided in this section.
Sec. 608 RCW 26.16.080 and 1888 c 27 s 3 are each amended to read
as follows:
Any conveyance, transfer, deed, lease or other encumbrances
executed under and by virtue of such power of attorney shall be
executed, acknowledged and certified in the same manner as if the
person making such power of attorney had been unmarried or not in a
state registered domestic partnership.
Sec. 609 RCW 26.16.090 and 1888 c 27 s 4 are each amended to read
as follows:
A ((husband)) spouse or domestic partner may make and execute a
letter of attorney to ((the wife, or the wife may make and execute a
letter of attorney to the husband)) his or her spouse or domestic
partner authorizing the sale or other disposition of his or her
community interest or estate in the community property and as such
attorney-in-fact to sign the name of such ((husband or wife)) spouse or
such domestic partner to any deed, conveyance, mortgage, lease or other
encumbrance or to any instrument necessary to be executed by which the
property conveyed or transferred shall be released from any claim as
community property. And either ((said husband or said wife)) spouse or
either domestic partner may make and execute a letter of attorney to
any third person to join with the other in the conveyance of any
interest either in separate real estate of either, or in the community
estate held by such ((husband or wife)) spouse or such domestic partner
in any real property. And both ((husband and wife)) spouses or both
domestic partners owning community property may jointly execute a power
of attorney to a third person authorizing the sale, encumbrance or
other disposition of community real property, and so execute the
necessary conveyance or transfer of said real estate.
Sec. 610 RCW 26.16.095 and 1891 c 151 s 1 are each amended to
read as follows:
Whenever any person, married, in a state registered domestic
partnership, or single, having in his or her name the legal title of
record to any real estate, shall sell or dispose of the same to an
actual bona fide purchaser, a deed of such real estate from the person
holding such legal record title to such actual bona fide purchaser
shall be sufficient to convey to, and vest in, such purchaser the full
legal and equitable title to such real estate free and clear of any and
all claims of any and all persons whatsoever, not appearing of record
in the auditor's office of the county in which such real estate is
situated.
Sec. 611 RCW 26.16.100 and 1891 c 151 s 2 are each amended to
read as follows:
A ((husband or wife)) spouse or domestic partner having an interest
in real estate, by virtue of the marriage relation or state registered
domestic partnership, the legal title of record to which real estate is
or shall be held by the other, may protect such interest from sale or
disposition by the ((husband or wife)) other spouse or other domestic
partner, as the case may be, in whose name the legal title is held, by
causing to be filed and recorded in the auditor's office of the county
in which such real estate is situated an instrument in writing setting
forth that the person filing such instrument is the ((husband or wife))
spouse or domestic partner, as the case may be, of the person holding
the legal title to the real estate in question, describing such real
estate and the claimant's interest therein; and when thus presented for
record such instrument shall be filed and recorded by the auditor of
the county in which such real estate is situated, in the same manner
and with like effect as regards notice to all the world, as deeds of
real estate are filed and recorded. And if either ((husband or wife))
spouse or either domestic partner fails to cause such an instrument to
be filed in the auditor's office in the county in which real estate is
situated, the legal title to which is held by the other, within a
period of ninety days from the date when such legal title has been made
a matter of record, any actual bona fide purchaser of such real estate
from the person in whose name the legal title stands of record,
receiving a deed of such real estate from the person thus holding the
legal title, shall be deemed and held to have received the full legal
and equitable title to such real estate free and clear of all claim of
the other spouse or other domestic partner.
Sec. 612 RCW 26.16.120 and 1998 c 292 s 505 are each amended to
read as follows:
Nothing contained in any of the provisions of this chapter or in
any law of this state, shall prevent ((the husband and wife)) both
spouses or both domestic partners from jointly entering into any
agreement concerning the status or disposition of the whole or any
portion of the community property, then owned by them or afterwards to
be acquired, to take effect upon the death of either. But such
agreement may be made at any time by ((the husband and wife)) both
spouses or both domestic partners by the execution of an instrument in
writing under their hands and seals, and to be witnessed, acknowledged
and certified in the same manner as deeds to real estate are required
to be, under the laws of the state, and the same may at any time
thereafter be altered or amended in the same manner. Such agreement
shall not derogate from the right of creditors; nor be construed to
curtail the powers of the superior court to set aside or cancel such
agreement for fraud or under some other recognized head of equity
jurisdiction, at the suit of either party; nor prevent the application
of laws governing the community property and inheritance rights of
slayers under chapter 11.84 RCW.
Sec. 613 RCW 26.16.140 and 1972 ex.s. c 108 s 5 are each amended
to read as follows:
When ((a husband and wife)) spouses or domestic partners are living
separate and apart, their respective earnings and accumulations shall
be the separate property of each. The earnings and accumulations of
minor children shall be the separate property of the spouse or domestic
partner who has their custody or, if no custody award has been made,
then the separate property of the spouse or domestic partner with whom
said children are living.
Sec. 614 RCW 26.16.150 and Code 1881 s 2396 are each amended to
read as follows:
Every married person or domestic partner shall hereafter have the
same right and liberty to acquire, hold, enjoy and dispose of every
species of property, and to sue and be sued, as if he or she were
unmarried or were not in a state registered domestic partnership.
Sec. 615 RCW 26.16.180 and Code 1881 s 2401 are each amended to
read as follows:
Should either ((husband or wife)) spouse or either domestic partner
obtain possession or control of property belonging to the other, either
before or after marriage or before or after entering into a state
registered domestic partnership, the owner of the property may maintain
an action therefor, or for any right growing out of the same, in the
same manner and to the same extent as if they were unmarried or were
not in a state registered domestic partnership.
Sec. 616 RCW 26.16.190 and 1972 ex.s. c 108 s 6 are each amended
to read as follows:
For all injuries committed by a married person or domestic partner,
there shall be no recovery against the separate property of the other
spouse or other domestic partner except in cases where there would be
joint responsibility if the marriage or the state registered domestic
partnership did not exist.
Sec. 617 RCW 26.16.200 and 1983 1st ex.s. c 41 s 2 are each
amended to read as follows:
Neither ((husband or wife)) person in a marriage or state
registered domestic partnership is liable for the debts or liabilities
of the other incurred before marriage or state registered domestic
partnership, nor for the separate debts of each other, nor is the rent
or income of the separate property of either liable for the separate
debts of the other: PROVIDED, That the earnings and accumulations of
the ((husband)) spouse or domestic partner shall be available to the
legal process of creditors for the satisfaction of debts incurred by
((him)) such spouse or domestic partner prior to the marriage((, and
the earnings and accumulations of the wife shall be available to the
legal process of creditors for the satisfaction of debts incurred by
her prior to marriage)) or the state registered domestic partnership.
For the purpose of this section, neither ((the husband nor the wife))
person in the marriage or the state registered domestic partnership
shall be construed to have any interest in the earnings of the other:
PROVIDED FURTHER, That no separate debt, except a child support or
maintenance obligation, may be the basis of a claim against the
earnings and accumulations of either ((a husband or wife)) spouse or
either domestic partner unless the same is reduced to judgment within
three years of the marriage or the state registered domestic
partnership of the parties. The obligation of a parent or stepparent
to support a child may be collected out of the parent's or stepparent's
separate property, the parent's or stepparent's earnings and
accumulations, and the parent's or stepparent's share of community
personal and real property. Funds in a community bank account which
can be identified as the earnings of the nonobligated spouse or
nonobligated domestic partner are exempt from satisfaction of the child
support obligation of the debtor spouse or debtor domestic partner.
Sec. 618 RCW 26.16.205 and 1990 1st ex.s. c 2 s 13 are each
amended to read as follows:
The expenses of the family and the education of the children,
including stepchildren, are chargeable upon the property of both
((husband and wife)) spouses or both domestic partners, or either of
them, and they may be sued jointly or separately. When a petition for
dissolution of marriage or state registered domestic partnership or a
petition for legal separation is filed, the court may, upon motion of
the stepparent, terminate the obligation to support the stepchildren.
The obligation to support stepchildren shall cease upon the entry of a
decree of dissolution, decree of legal separation, or death.
Sec. 619 RCW 26.16.210 and Code 1881 s 2397 are each amended to
read as follows:
In every case, where any question arises as to the good faith of
any transaction between ((husband and wife)) spouses or between
domestic partners, whether a transaction between them directly or by
intervention of third person or persons, the burden of proof shall be
upon the party asserting the good faith.
Sec. 620 RCW 26.16.220 and 1988 c 34 s 1 are each amended to read
as follows:
(1) Unless the context clearly requires otherwise, as used in RCW
26.16.220 through 26.16.250 "quasi-community property" means all
personal property wherever situated and all real property described in
subsection (2) of this section that is not community property and that
was heretofore or hereafter acquired:
(a) By the decedent while domiciled elsewhere and that would have
been the community property of the decedent and of the decedent's
surviving spouse or surviving domestic partner had the decedent been
domiciled in this state at the time of its acquisition; or
(b) In derivation or in exchange for real or personal property,
wherever situated, that would have been the community property of the
decedent and ((the)) his or her surviving spouse or surviving domestic
partner if the decedent had been domiciled in this state at the time
the original property was acquired.
(2) For purposes of this section, real property includes:
(a) Real property situated in this state;
(b) Real property situated outside this state if the law of the
state where the real property is located provides that the law of the
decedent's domicile at death shall govern the rights of the decedent's
surviving spouse or surviving domestic partner to a share of such
property; and
(c) Leasehold interests in real property described in (a) or (b) of
this subsection.
(3) For purposes of this section, all legal presumptions and
principles applicable to the proper characterization of property as
community property under the laws and decisions of this state shall
apply in determining whether property would have been the community
property of the decedent and ((the)) his or her surviving spouse or
surviving domestic partner under the provisions of subsection (1) of
this section.
Sec. 621 RCW 26.16.230 and 1988 c 34 s 2 are each amended to read
as follows:
Upon the death of any person domiciled in this state, one-half of
any quasi-community property shall belong to the surviving spouse or
surviving domestic partner and the other one-half of such property
shall be subject to disposition at death by the decedent, and in the
absence thereof, shall descend in the manner provided for community
property under chapter 11.04 RCW.
Sec. 622 RCW 26.16.240 and 1988 c 34 s 3 are each amended to read
as follows:
(1) If a decedent domiciled in this state on the date of his or her
death made a lifetime transfer of a property interest that is quasi-community property to a person other than the surviving spouse or
surviving domestic partner within three years of death, then within the
time for filing claims against the estate as provided by RCW 11.40.010,
the surviving spouse or surviving domestic partner may require the
transferee to restore to the decedent's estate one-half of such
property interest, if the transferee retains the property interest,
and, if not, one-half of its proceeds, or, if none, one-half of its
value at the time of transfer, if:
(a) The decedent retained, at the time of death, the possession or
enjoyment of or the right to income from the property interest;
(b) The decedent retained, at the time of death, a power, either
alone or in conjunction with any other person, to revoke or to consume,
invade or dispose of the property interest for the decedent's own
benefit; or
(c) The decedent held the property interest at the time of death
with another with the right of survivorship.
(2) Notwithstanding subsection (1) of this section, no such
property interest, proceeds, or value may be required to be restored to
the decedent's estate if:
(a) Such property interest was transferred for adequate
consideration;
(b) Such property interest was transferred with the consent of the
surviving spouse or surviving domestic partner; or
(c) The transferee purchased such property interest in property
from the decedent while believing in good faith that the property or
property interest was the separate property of the decedent and did not
constitute quasi-community property.
(3) All property interests, proceeds, or value restored to the
decedent's estate under this section shall belong to the surviving
spouse or surviving domestic partner pursuant to RCW 26.16.230 as
though the transfer had never been made.
(4) The surviving spouse or surviving domestic partner may waive
any right granted hereunder by written instrument filed in the probate
proceedings. If the surviving spouse or surviving domestic partner
acts as personal representative of the decedent's estate and causes the
estate to be closed before the time for exercising any right granted by
this section expires, such closure shall act as a waiver by the
surviving spouse or surviving domestic partner of any and all rights
granted by this section.
Sec. 623 RCW 26.16.250 and 1988 c 34 s 4 are each amended to read
as follows:
The characterization of property as quasi-community property under
this chapter shall be effective solely for the purpose of determining
the disposition of such property at the time of a death, and such
characterization shall not affect the rights of the decedent's
creditors. For all other purposes property characterized as quasi-community property under this chapter shall be characterized without
regard to the provisions of this chapter. ((A husband and wife)) Both
spouses or both domestic partners may waive, modify, or relinquish any
quasi-community property right granted or created by this chapter by
signed written agreement, wherever executed, before or after June 11,
1986, including without limitation, community property agreements,
prenuptial and postnuptial agreements, or agreements as to status of
property.
Sec. 624 RCW 11.84.030 and 1965 c 145 s 11.84.030 are each
amended to read as follows:
The slayer shall be deemed to have predeceased the decedent as to
property which would have passed from the decedent or his estate to the
slayer under the statutes of descent and distribution or have been
acquired by statutory right as surviving spouse or surviving domestic
partner or under any agreement made with the decedent under the
provisions of RCW 26.16.120 as it now exists or is hereafter amended.
Sec. 625 RCW 64.28.010 and 1993 c 19 s 1 are each amended to read
as follows:
Whereas joint tenancy with right of survivorship permits property
to pass to the survivor without the cost or delay of probate
proceedings, there shall be a form of co-ownership of property, real
and personal, known as joint tenancy. A joint tenancy shall have the
incidents of survivorship and severability as at common law, including
the unilateral right of each tenant to sever the joint tenancy. Joint
tenancy shall be created only by written instrument, which instrument
shall expressly declare the interest created to be a joint tenancy. It
may be created by a single agreement, transfer, deed, will, or other
instrument of conveyance, or by agreement, transfer, deed or other
instrument from a sole owner to himself or herself and others, or from
tenants in common or joint tenants to themselves or some of them, or to
themselves or any of them and others, or from ((husband and wife)) both
spouses or both domestic partners, when holding title as community
property, or otherwise, to themselves or to themselves and others, or
to one of them and to another or others, or when granted or devised to
executors or trustees as joint tenants: PROVIDED, That such transfer
shall not derogate from the rights of creditors.
Sec. 626 RCW 64.28.020 and 1988 c 29 s 10 are each amended to
read as follows:
(1) Every interest created in favor of two or more persons in their
own right is an interest in common, unless acquired by them in
partnership, for partnership purposes, or unless declared in its
creation to be a joint tenancy, as provided in RCW 64.28.010, or unless
acquired by executors or trustees.
(2) Interests in common held in the names of ((a husband and wife))
both spouses or both domestic partners, whether or not in conjunction
with others, are presumed to be their community property.
(3) Subsection (2) of this section applies as of June 9, 1988, to
all existing or subsequently created interests in common.
Sec. 627 RCW 64.28.030 and 1961 c 2 s 3 are each amended to read
as follows:
The provisions of this chapter shall not restrict the creation of
a joint tenancy in a bank deposit or in other choses in action as
heretofore or hereafter provided by law, nor restrict the power of
((husband and wife)) both spouses or both domestic partners to make
agreements as provided in RCW 26.16.120.
Sec. 628 RCW 64.28.040 and 1993 c 19 s 2 are each amended to read
as follows:
(1) Joint tenancy interests held in the names of ((a husband and
wife)) both spouses or both domestic partners, whether or not in
conjunction with others, are presumed to be their community property,
the same as other property held in the name of both ((husband and
wife)) spouses or both domestic partners. Any such interest passes to
the survivor of the ((husband and wife)) spouse or survivor of the
domestic partner as provided for property held in joint tenancy, but in
all other respects the interest is treated as community property.
(2) Either ((husband or wife)) person in a marriage or either
person in a state registered domestic partnership, or both, may sever
a joint tenancy. When a joint tenancy is severed, the property, or
proceeds of the property, shall be presumed to be their community
property, whether it is held in the name of ((the husband or wife))
either spouse, or both, or in the name of either domestic partner, or
both.
(3) This section applies as of January 1, 1985, to all existing or
subsequently created joint tenancies.
Sec. 629 RCW 9.46.231 and 1997 c 128 s 1 are each amended to read
as follows:
(1) The following are subject to seizure and forfeiture and no
property right exists in them:
(a) All gambling devices as defined in this chapter;
(b) All furnishings, fixtures, equipment, and stock, including
without limitation furnishings and fixtures adaptable to nongambling
uses and equipment and stock for printing, recording, computing,
transporting, or safekeeping, used in connection with professional
gambling or maintaining a gambling premises;
(c) All conveyances, including aircraft, vehicles, or vessels, that
are used, or intended for use, in any manner to facilitate the sale,
delivery, receipt, or operation of any gambling device, or the
promotion or operation of a professional gambling activity, except
that:
(i) A conveyance used by any person as a common carrier in the
transaction of business as a common carrier is not subject to
forfeiture under this section unless it appears that the owner or other
person in charge of the conveyance is a consenting party or privy to a
violation of this chapter;
(ii) A conveyance is not subject to forfeiture under this section
by reason of any act or omission established by the owner thereof to
have been committed or omitted without the owner's knowledge or
consent;
(iii) A forfeiture of a conveyance encumbered by a bona fide
security interest is subject to the interest of the secured party if
the secured party neither had knowledge of nor consented to the act or
omission; and
(iv) If the owner of a conveyance has been arrested under this
chapter the conveyance in which the person is arrested may not be
subject to forfeiture unless it is seized or process is issued for its
seizure within ten days of the owner's arrest;
(d) All books, records, and research products and materials,
including formulas, microfilm, tapes, and electronic data that are
used, or intended for use, in violation of this chapter;
(e) All moneys, negotiable instruments, securities, or other
tangible or intangible property of value at stake or displayed in or in
connection with professional gambling activity or furnished or intended
to be furnished by any person to facilitate the promotion or operation
of a professional gambling activity;
(f) All tangible or intangible personal property, proceeds, or
assets acquired in whole or in part with proceeds traceable to
professional gambling activity and all moneys, negotiable instruments,
and securities used or intended to be used to facilitate any violation
of this chapter. A forfeiture of money, negotiable instruments,
securities, or other tangible or intangible property encumbered by a
bona fide security interest is subject to the interest of the secured
party if, at the time the security interest was created, the secured
party neither had knowledge of nor consented to the act or omission.
Personal property may not be forfeited under this subsection (1)(f), to
the extent of the interest of an owner, by reason of any act or
omission that that owner establishes was committed or omitted without
the owner's knowledge or consent; and
(g) All real property, including any right, title, and interest in
the whole of any lot or tract of land, and any appurtenances or
improvements that:
(i) Have been used with the knowledge of the owner for the
manufacturing, processing, delivery, importing, or exporting of any
illegal gambling equipment, or operation of a professional gambling
activity that would constitute a felony violation of this chapter; or
(ii) Have been acquired in whole or in part with proceeds traceable
to a professional gambling activity, if the activity is not less than
a class C felony.
Real property forfeited under this chapter that is encumbered by a
bona fide security interest remains subject to the interest of the
secured party if the secured party, at the time the security interest
was created, neither had knowledge of nor consented to the act or
omission. Property may not be forfeited under this subsection, to the
extent of the interest of an owner, by reason of any act or omission
committed or omitted without the owner's knowledge or consent.
(2)(a) A law enforcement officer of this state may seize real or
personal property subject to forfeiture under this chapter upon process
issued by any superior court having jurisdiction over the property.
Seizure of real property includes the filing of a lis pendens by the
seizing agency. Real property seized under this section may not be
transferred or otherwise conveyed until ninety days after seizure or
until a judgment of forfeiture is entered, whichever is later, but real
property seized under this section may be transferred or conveyed to
any person or entity who acquires title by foreclosure or deed in lieu
of foreclosure of a bona fide security interest.
(b) Seizure of personal property without process may be made if:
(i) The seizure is incident to an arrest or a search under a search
warrant or an inspection under an administrative inspection warrant;
(ii) The property subject to seizure has been the subject of a
prior judgment in favor of the state in a criminal injunction or
forfeiture proceeding based upon this chapter;
(iii) A law enforcement officer has probable cause to believe that
the property is directly or indirectly dangerous to health or safety;
or
(iv) The law enforcement officer has probable cause to believe that
the property was used or is intended to be used in violation of this
chapter.
(3) In the event of seizure under subsection (2) of this section,
proceedings for forfeiture are deemed commenced by the seizure. The
law enforcement agency under whose authority the seizure was made shall
cause notice to be served within fifteen days following the seizure on
the owner of the property seized and the person in charge thereof and
any person having any known right or interest therein, including any
community property interest, of the seizure and intended forfeiture of
the seized property. Service of notice of seizure of real property
must be made according to the rules of civil procedure. However, the
state may not obtain a default judgment with respect to real property
against a party who is served by substituted service absent an
affidavit stating that a good faith effort has been made to ascertain
if the defaulted party is incarcerated within the state, and that there
is no present basis to believe that the party is incarcerated within
the state. Notice of seizure in the case of property subject to a
security interest that has been perfected by filing a financing
statement in accordance with chapter ((62A.9)) 62A.9A RCW, or a
certificate of title, must be made by service upon the secured party or
the secured party's assignee at the address shown on the financing
statement or the certificate of title. The notice of seizure in other
cases may be served by any method authorized by law or court rule
including but not limited to service by certified mail with return
receipt requested. Service by mail is deemed complete upon mailing
within the fifteen-day period following the seizure.
(4) If no person notifies the seizing law enforcement agency in
writing of the person's claim of ownership or right to possession of
items specified in subsection (1) of this section within forty-five
days of the seizure in the case of personal property and ninety days in
the case of real property, the item seized is deemed forfeited. The
community property interest in real property of a person whose spouse
or domestic partner committed a violation giving rise to seizure of the
real property may not be forfeited if the person did not participate in
the violation.
(5) If any person notifies the seizing law enforcement agency in
writing of the person's claim of ownership or right to possession of
items specified in subsection (1) of this section within forty-five
days of the seizure in the case of personal property and ninety days in
the case of real property, the person or persons must be afforded a
reasonable opportunity to be heard as to the claim or right. The
hearing must be before the chief law enforcement officer of the seizing
agency or the chief law enforcement officer's designee, except if the
seizing agency is a state agency as defined in RCW 34.12.020(4), the
hearing must be before the chief law enforcement officer of the seizing
agency or an administrative law judge appointed under chapter 34.12
RCW, except that any person asserting a claim or right may remove the
matter to a court of competent jurisdiction. Removal of any matter
involving personal property may only be accomplished according to the
rules of civil procedure. The person seeking removal of the matter
must serve process against the state, county, political subdivision, or
municipality that operates the seizing agency, and any other party of
interest, in accordance with RCW 4.28.080 or 4.92.020, within forty-five days after the person seeking removal has notified the seizing law
enforcement agency of the person's claim of ownership or right to
possession. The court to which the matter is to be removed must be the
district court if the aggregate value of personal property is within
the jurisdictional limit set forth in RCW 3.66.020. A hearing before
the seizing agency and any appeal therefrom must be under Title 34 RCW.
In a court hearing between two or more claimants to the article or
articles involved, the prevailing party is entitled to a judgment for
costs and reasonable attorneys' fees. In cases involving personal
property, the burden of producing evidence is upon the person claiming
to be the lawful owner or the person claiming to have the lawful right
to possession of the property. In cases involving property seized
under subsection (1)(a) of this section, the only issues to be
determined by the tribunal are whether the item seized is a gambling
device, and whether the device is an antique device as defined by RCW
9.46.235. In cases involving real property, the burden of producing
evidence is upon the law enforcement agency. The burden of proof that
the seized real property is subject to forfeiture is upon the law
enforcement agency. The seizing law enforcement agency shall promptly
return the article or articles to the claimant upon a final
determination by the administrative law judge or court that the
claimant is the present lawful owner or is lawfully entitled to
possession thereof of items specified in subsection (1) of this
section.
(6) If property is forfeited under this chapter the seizing law
enforcement agency may:
(a) Retain it for official use or upon application by any law
enforcement agency of this state release the property to the agency for
training or use in enforcing this chapter;
(b) Sell that which is not required to be destroyed by law and
which is not harmful to the public; or
(c) Destroy any articles that may not be lawfully possessed within
the state of Washington, or that have a fair market value of less than
one hundred dollars.
(7)(a) If property is forfeited, the seizing agency shall keep a
record indicating the identity of the prior owner, if known, a
description of the property, the disposition of the property, the value
of the property at the time of seizure, and the amount of proceeds
realized from disposition of the property. The net proceeds of
forfeited property is the value of the forfeitable interest in the
property after deducting the cost of satisfying any bona fide security
interest to which the property is subject at the time of seizure, and
in the case of sold property, after deducting the cost of sale,
including reasonable fees or commissions paid to independent selling
agents.
(b) Each seizing agency shall retain records of forfeited property
for at least seven years.
(8) The seizing law enforcement agency shall retain forfeited
property and net proceeds exclusively for the expansion and improvement
of gambling-related law enforcement activity. Money retained under
this section may not be used to supplant preexisting funding sources.
(9) Gambling devices that are possessed, transferred, sold, or
offered for sale in violation of this chapter are contraband and must
be seized and summarily forfeited to the state. Gambling equipment
that is seized or comes into the possession of a law enforcement
agency, the owners of which are unknown, are contraband and must be
summarily forfeited to the state.
(10) Upon the entry of an order of forfeiture of real property, the
court shall forward a copy of the order to the assessor of the county
in which the property is located. The superior court shall enter
orders for the forfeiture of real property, subject to court rules.
The seizing agency shall file such an order in the county auditor's
records in the county in which the real property is located.
(11)(a) A landlord may assert a claim against proceeds from the
sale of assets seized and forfeited under subsection (6)(b) of this
section, only if:
(i) A law enforcement officer, while acting in his or her official
capacity, directly caused damage to the complaining landlord's property
while executing a search of a tenant's residence; and
(ii) The landlord has applied any funds remaining in the tenant's
deposit, to which the landlord has a right under chapter 59.18 RCW, to
cover the damage directly caused by a law enforcement officer before
asserting a claim under this section.
(A) Only if the funds applied under (a)(ii) of this subsection are
insufficient to satisfy the damage directly caused by a law enforcement
officer, may the landlord seek compensation for the damage by filing a
claim against the governmental entity under whose authority the law
enforcement agency operates within thirty days after the search; and
(B) Only if the governmental entity denies or fails to respond to
the landlord's claim within sixty days of the date of filing, may the
landlord collect damages under this subsection by filing within thirty
days of denial or the expiration of the sixty-day period, whichever
occurs first, a claim with the seizing law enforcement agency. The
seizing law enforcement agency shall notify the landlord of the status
of the claim by the end of the thirty-day period. This section does
not require the claim to be paid by the end of the sixty-day or thirty-day period.
(b) For any claim filed under (a)(ii) of this subsection, the law
enforcement agency shall pay the claim unless the agency provides
substantial proof that the landlord either:
(i) Knew or consented to actions of the tenant in violation of this
chapter; or
(ii) Failed to respond to a notification of the illegal activity,
provided by a law enforcement agency within seven days of receipt of
notification of the illegal activity.
(12) The landlord's claim for damages under subsection (11) of this
section may not include a claim for loss of business and is limited to:
(a) Damage to tangible property and clean-up costs;
(b) The lesser of the cost of repair or fair market value of the
damage directly caused by a law enforcement officer;
(c) The proceeds from the sale of the specific tenant's property
seized and forfeited under subsection (6)(b) of this section; and
(d) The proceeds available after the seizing law enforcement agency
satisfies any bona fide security interest in the tenant's property and
costs related to sale of the tenant's property as provided by
subsection (7)(a) of this section.
(13) Subsections (11) and (12) of this section do not limit any
other rights a landlord may have against a tenant to collect for
damages. However, if a law enforcement agency satisfies a landlord's
claim under subsection (11) of this section, the rights the landlord
has against the tenant for damages directly caused by a law enforcement
officer under the terms of the landlord and tenant's contract are
subrogated to the law enforcement agency.
(14) Liability is not imposed by this section upon any authorized
state, county, or municipal officer, including a commission special
agent, in the lawful performance of his or her duties.
Sec. 630 RCW 9A.83.030 and 2001 c 168 s 2 are each amended to
read as follows:
(1) Proceeds traceable to or derived from specified unlawful
activity or a violation of RCW 9A.83.020 are subject to seizure and
forfeiture. The attorney general or county prosecuting attorney may
file a civil action for the forfeiture of proceeds. Unless otherwise
provided for under this section, no property rights exist in these
proceeds. All right, title, and interest in the proceeds shall vest in
the governmental entity of which the seizing law enforcement agency is
a part upon commission of the act or omission giving rise to forfeiture
under this section.
(2) Real or personal property subject to forfeiture under this
chapter may be seized by any law enforcement officer of this state upon
process issued by a superior court that has jurisdiction over the
property. Any agency seizing real property shall file a lis pendens
concerning the property. Real property seized under this section shall
not be transferred or otherwise conveyed until ninety days after
seizure or until a judgment of forfeiture is entered, whichever is
later. Real property seized under this section may be transferred or
conveyed to any person or entity who acquires title by foreclosure or
deed in lieu of foreclosure of a security interest. Seizure of
personal property without process may be made if:
(a) The seizure is incident to an arrest or a search under a search
warrant or an inspection under an administrative inspection warrant
issued pursuant to RCW 69.50.502; or
(b) The property subject to seizure has been the subject of a prior
judgment in favor of the state in a criminal injunction or forfeiture
proceeding based upon this chapter.
(3) A seizure under subsection (2) of this section commences
proceedings for forfeiture. The law enforcement agency under whose
authority the seizure was made shall cause notice of the seizure and
intended forfeiture of the seized proceeds to be served within fifteen
days after the seizure on the owner of the property seized and the
person in charge thereof and any person who has a known right or
interest therein, including a community property interest. Service of
notice of seizure of real property shall be made according to the rules
of civil procedure. However, the state may not obtain a default
judgment with respect to real property against a party who is served by
substituted service absent an affidavit stating that a good faith
effort has been made to ascertain if the defaulted party is
incarcerated within the state, and that there is no present basis to
believe that the party is incarcerated within the state. The notice of
seizure in other cases may be served by any method authorized by law or
court rule including but not limited to service by certified mail with
return receipt requested. Service by mail is complete upon mailing
within the fifteen-day period after the seizure.
(4) If no person notifies the seizing law enforcement agency in
writing of the person's claim of ownership or right to possession of
the property within forty-five days of the seizure in the case of
personal property and ninety days in the case of real property, the
property seized shall be deemed forfeited. The community property
interest in real property of a person whose spouse or domestic partner
committed a violation giving rise to seizure of the real property may
not be forfeited if the person did not participate in the violation.
(5) If a person notifies the seizing law enforcement agency in
writing of the person's claim of ownership or right to possession of
property within forty-five days of the seizure in the case of personal
property and ninety days in the case of real property, the person or
persons shall be afforded a reasonable opportunity to be heard as to
the claim or right. The provisions of RCW 69.50.505(((e))) (5) shall
apply to any such hearing. The seizing law enforcement agency shall
promptly return property to the claimant upon the direction of the
administrative law judge or court.
(6) Disposition of forfeited property shall be made in the manner
provided for in RCW 69.50.505 (((h) through (j) and (n))) (8) through
(10) and (14).
Sec. 631 RCW 69.50.505 and 2003 c 53 s 348 are each amended to
read as follows:
(1) The following are subject to seizure and forfeiture and no
property right exists in them:
(a) All controlled substances which have been manufactured,
distributed, dispensed, acquired, or possessed in violation of this
chapter or chapter 69.41 or 69.52 RCW, and all hazardous chemicals, as
defined in RCW 64.44.010, used or intended to be used in the
manufacture of controlled substances;
(b) All raw materials, products, and equipment of any kind which
are used, or intended for use, in manufacturing, compounding,
processing, delivering, importing, or exporting any controlled
substance in violation of this chapter or chapter 69.41 or 69.52 RCW;
(c) All property which is used, or intended for use, as a container
for property described in (a) or (b) of this subsection;
(d) All conveyances, including aircraft, vehicles, or vessels,
which are used, or intended for use, in any manner to facilitate the
sale, delivery, or receipt of property described in (a) or (b) of this
subsection, except that:
(i) No conveyance used by any person as a common carrier in the
transaction of business as a common carrier is subject to forfeiture
under this section unless it appears that the owner or other person in
charge of the conveyance is a consenting party or privy to a violation
of this chapter or chapter 69.41 or 69.52 RCW;
(ii) No conveyance is subject to forfeiture under this section by
reason of any act or omission established by the owner thereof to have
been committed or omitted without the owner's knowledge or consent;
(iii) No conveyance is subject to forfeiture under this section if
used in the receipt of only an amount of marijuana for which possession
constitutes a misdemeanor under RCW 69.50.4014;
(iv) A forfeiture of a conveyance encumbered by a bona fide
security interest is subject to the interest of the secured party if
the secured party neither had knowledge of nor consented to the act or
omission; and
(v) When the owner of a conveyance has been arrested under this
chapter or chapter 69.41 or 69.52 RCW the conveyance in which the
person is arrested may not be subject to forfeiture unless it is seized
or process is issued for its seizure within ten days of the owner's
arrest;
(e) All books, records, and research products and materials,
including formulas, microfilm, tapes, and data which are used, or
intended for use, in violation of this chapter or chapter 69.41 or
69.52 RCW;
(f) All drug paraphernalia;
(g) All moneys, negotiable instruments, securities, or other
tangible or intangible property of value furnished or intended to be
furnished by any person in exchange for a controlled substance in
violation of this chapter or chapter 69.41 or 69.52 RCW, all tangible
or intangible personal property, proceeds, or assets acquired in whole
or in part with proceeds traceable to an exchange or series of
exchanges in violation of this chapter or chapter 69.41 or 69.52 RCW,
and all moneys, negotiable instruments, and securities used or intended
to be used to facilitate any violation of this chapter or chapter 69.41
or 69.52 RCW. A forfeiture of money, negotiable instruments,
securities, or other tangible or intangible property encumbered by a
bona fide security interest is subject to the interest of the secured
party if, at the time the security interest was created, the secured
party neither had knowledge of nor consented to the act or omission.
No personal property may be forfeited under this subsection (1)(g), to
the extent of the interest of an owner, by reason of any act or
omission which that owner establishes was committed or omitted without
the owner's knowledge or consent; and
(h) All real property, including any right, title, and interest in
the whole of any lot or tract of land, and any appurtenances or
improvements which are being used with the knowledge of the owner for
the manufacturing, compounding, processing, delivery, importing, or
exporting of any controlled substance, or which have been acquired in
whole or in part with proceeds traceable to an exchange or series of
exchanges in violation of this chapter or chapter 69.41 or 69.52 RCW,
if such activity is not less than a class C felony and a substantial
nexus exists between the commercial production or sale of the
controlled substance and the real property. However:
(i) No property may be forfeited pursuant to this subsection
(1)(h), to the extent of the interest of an owner, by reason of any act
or omission committed or omitted without the owner's knowledge or
consent;
(ii) The bona fide gift of a controlled substance, legend drug, or
imitation controlled substance shall not result in the forfeiture of
real property;
(iii) The possession of marijuana shall not result in the
forfeiture of real property unless the marijuana is possessed for
commercial purposes, the amount possessed is five or more plants or one
pound or more of marijuana, and a substantial nexus exists between the
possession of marijuana and the real property. In such a case, the
intent of the offender shall be determined by the preponderance of the
evidence, including the offender's prior criminal history, the amount
of marijuana possessed by the offender, the sophistication of the
activity or equipment used by the offender, and other evidence which
demonstrates the offender's intent to engage in commercial activity;
(iv) The unlawful sale of marijuana or a legend drug shall not
result in the forfeiture of real property unless the sale was forty
grams or more in the case of marijuana or one hundred dollars or more
in the case of a legend drug, and a substantial nexus exists between
the unlawful sale and the real property; and
(v) A forfeiture of real property encumbered by a bona fide
security interest is subject to the interest of the secured party if
the secured party, at the time the security interest was created,
neither had knowledge of nor consented to the act or omission.
(2) Real or personal property subject to forfeiture under this
chapter may be seized by any board inspector or law enforcement officer
of this state upon process issued by any superior court having
jurisdiction over the property. Seizure of real property shall include
the filing of a lis pendens by the seizing agency. Real property
seized under this section shall not be transferred or otherwise
conveyed until ninety days after seizure or until a judgment of
forfeiture is entered, whichever is later: PROVIDED, That real
property seized under this section may be transferred or conveyed to
any person or entity who acquires title by foreclosure or deed in lieu
of foreclosure of a security interest. Seizure of personal property
without process may be made if:
(a) The seizure is incident to an arrest or a search under a search
warrant or an inspection under an administrative inspection warrant;
(b) The property subject to seizure has been the subject of a prior
judgment in favor of the state in a criminal injunction or forfeiture
proceeding based upon this chapter;
(c) A board inspector or law enforcement officer has probable cause
to believe that the property is directly or indirectly dangerous to
health or safety; or
(d) The board inspector or law enforcement officer has probable
cause to believe that the property was used or is intended to be used
in violation of this chapter.
(3) In the event of seizure pursuant to subsection (2) of this
section, proceedings for forfeiture shall be deemed commenced by the
seizure. The law enforcement agency under whose authority the seizure
was made shall cause notice to be served within fifteen days following
the seizure on the owner of the property seized and the person in
charge thereof and any person having any known right or interest
therein, including any community property interest, of the seizure and
intended forfeiture of the seized property. Service of notice of
seizure of real property shall be made according to the rules of civil
procedure. However, the state may not obtain a default judgment with
respect to real property against a party who is served by substituted
service absent an affidavit stating that a good faith effort has been
made to ascertain if the defaulted party is incarcerated within the
state, and that there is no present basis to believe that the party is
incarcerated within the state. Notice of seizure in the case of
property subject to a security interest that has been perfected by
filing a financing statement in accordance with chapter 62A.9A RCW, or
a certificate of title, shall be made by service upon the secured party
or the secured party's assignee at the address shown on the financing
statement or the certificate of title. The notice of seizure in other
cases may be served by any method authorized by law or court rule
including but not limited to service by certified mail with return
receipt requested. Service by mail shall be deemed complete upon
mailing within the fifteen day period following the seizure.
(4) If no person notifies the seizing law enforcement agency in
writing of the person's claim of ownership or right to possession of
items specified in subsection (1)(d), (g), or (h) of this section
within forty-five days of the seizure in the case of personal property
and ninety days in the case of real property, the item seized shall be
deemed forfeited. The community property interest in real property of
a person whose spouse or domestic partner committed a violation giving
rise to seizure of the real property may not be forfeited if the person
did not participate in the violation.
(5) If any person notifies the seizing law enforcement agency in
writing of the person's claim of ownership or right to possession of
items specified in subsection (1)(b), (c), (d), (e), (f), (g), or (h)
of this section within forty-five days of the seizure in the case of
personal property and ninety days in the case of real property, the
person or persons shall be afforded a reasonable opportunity to be
heard as to the claim or right. The hearing shall be before the chief
law enforcement officer of the seizing agency or the chief law
enforcement officer's designee, except where the seizing agency is a
state agency as defined in RCW 34.12.020(4), the hearing shall be
before the chief law enforcement officer of the seizing agency or an
administrative law judge appointed under chapter 34.12 RCW, except that
any person asserting a claim or right may remove the matter to a court
of competent jurisdiction. Removal of any matter involving personal
property may only be accomplished according to the rules of civil
procedure. The person seeking removal of the matter must serve process
against the state, county, political subdivision, or municipality that
operates the seizing agency, and any other party of interest, in
accordance with RCW 4.28.080 or 4.92.020, within forty-five days after
the person seeking removal has notified the seizing law enforcement
agency of the person's claim of ownership or right to possession. The
court to which the matter is to be removed shall be the district court
when the aggregate value of personal property is within the
jurisdictional limit set forth in RCW 3.66.020. A hearing before the
seizing agency and any appeal therefrom shall be under Title 34 RCW.
In all cases, the burden of proof is upon the law enforcement agency to
establish, by a preponderance of the evidence, that the property is
subject to forfeiture.
The seizing law enforcement agency shall promptly return the
article or articles to the claimant upon a determination by the
administrative law judge or court that the claimant is the present
lawful owner or is lawfully entitled to possession thereof of items
specified in subsection (1)(b), (c), (d), (e), (f), (g), or (h) of this
section.
(6) In any proceeding to forfeit property under this title, where
the claimant substantially prevails, the claimant is entitled to
reasonable attorneys' fees reasonably incurred by the claimant. In
addition, in a court hearing between two or more claimants to the
article or articles involved, the prevailing party is entitled to a
judgment for costs and reasonable attorneys' fees.
(7) When property is forfeited under this chapter the board or
seizing law enforcement agency may:
(a) Retain it for official use or upon application by any law
enforcement agency of this state release such property to such agency
for the exclusive use of enforcing the provisions of this chapter;
(b) Sell that which is not required to be destroyed by law and
which is not harmful to the public;
(c) Request the appropriate sheriff or director of public safety to
take custody of the property and remove it for disposition in
accordance with law; or
(d) Forward it to the drug enforcement administration for
disposition.
(8)(a) When property is forfeited, the seizing agency shall keep a
record indicating the identity of the prior owner, if known, a
description of the property, the disposition of the property, the value
of the property at the time of seizure, and the amount of proceeds
realized from disposition of the property.
(b) Each seizing agency shall retain records of forfeited property
for at least seven years.
(c) Each seizing agency shall file a report including a copy of the
records of forfeited property with the state treasurer each calendar
quarter.
(d) The quarterly report need not include a record of forfeited
property that is still being held for use as evidence during the
investigation or prosecution of a case or during the appeal from a
conviction.
(9)(a) By January 31st of each year, each seizing agency shall
remit to the state treasurer an amount equal to ten percent of the net
proceeds of any property forfeited during the preceding calendar year.
Money remitted shall be deposited in the violence reduction and drug
enforcement account under RCW 69.50.520.
(b) The net proceeds of forfeited property is the value of the
forfeitable interest in the property after deducting the cost of
satisfying any bona fide security interest to which the property is
subject at the time of seizure; and in the case of sold property, after
deducting the cost of sale, including reasonable fees or commissions
paid to independent selling agents, and the cost of any valid
landlord's claim for damages under subsection (15) of this section.
(c) The value of sold forfeited property is the sale price. The
value of retained forfeited property is the fair market value of the
property at the time of seizure, determined when possible by reference
to an applicable commonly used index, such as the index used by the
department of licensing for valuation of motor vehicles. A seizing
agency may use, but need not use, an independent qualified appraiser to
determine the value of retained property. If an appraiser is used, the
value of the property appraised is net of the cost of the appraisal.
The value of destroyed property and retained firearms or illegal
property is zero.
(10) Forfeited property and net proceeds not required to be paid to
the state treasurer shall be retained by the seizing law enforcement
agency exclusively for the expansion and improvement of controlled
substances related law enforcement activity. Money retained under this
section may not be used to supplant preexisting funding sources.
(11) Controlled substances listed in Schedule I, II, III, IV, and
V that are possessed, transferred, sold, or offered for sale in
violation of this chapter are contraband and shall be seized and
summarily forfeited to the state. Controlled substances listed in
Schedule I, II, III, IV, and V, which are seized or come into the
possession of the board, the owners of which are unknown, are
contraband and shall be summarily forfeited to the board.
(12) Species of plants from which controlled substances in
Schedules I and II may be derived which have been planted or cultivated
in violation of this chapter, or of which the owners or cultivators are
unknown, or which are wild growths, may be seized and summarily
forfeited to the board.
(13) The failure, upon demand by a board inspector or law
enforcement officer, of the person in occupancy or in control of land
or premises upon which the species of plants are growing or being
stored to produce an appropriate registration or proof that he or she
is the holder thereof constitutes authority for the seizure and
forfeiture of the plants.
(14) Upon the entry of an order of forfeiture of real property, the
court shall forward a copy of the order to the assessor of the county
in which the property is located. Orders for the forfeiture of real
property shall be entered by the superior court, subject to court
rules. Such an order shall be filed by the seizing agency in the
county auditor's records in the county in which the real property is
located.
(15) A landlord may assert a claim against proceeds from the sale
of assets seized and forfeited under subsection (7)(b) of this section,
only if:
(a) A law enforcement officer, while acting in his or her official
capacity, directly caused damage to the complaining landlord's property
while executing a search of a tenant's residence; and
(b) The landlord has applied any funds remaining in the tenant's
deposit, to which the landlord has a right under chapter 59.18 RCW, to
cover the damage directly caused by a law enforcement officer prior to
asserting a claim under the provisions of this section;
(i) Only if the funds applied under (b) of this subsection are
insufficient to satisfy the damage directly caused by a law enforcement
officer, may the landlord seek compensation for the damage by filing a
claim against the governmental entity under whose authority the law
enforcement agency operates within thirty days after the search;
(ii) Only if the governmental entity denies or fails to respond to
the landlord's claim within sixty days of the date of filing, may the
landlord collect damages under this subsection by filing within thirty
days of denial or the expiration of the sixty-day period, whichever
occurs first, a claim with the seizing law enforcement agency. The
seizing law enforcement agency must notify the landlord of the status
of the claim by the end of the thirty-day period. Nothing in this
section requires the claim to be paid by the end of the sixty-day or
thirty-day period.
(c) For any claim filed under (b) of this subsection, the law
enforcement agency shall pay the claim unless the agency provides
substantial proof that the landlord either:
(i) Knew or consented to actions of the tenant in violation of this
chapter or chapter 69.41 or 69.52 RCW; or
(ii) Failed to respond to a notification of the illegal activity,
provided by a law enforcement agency under RCW 59.18.075, within seven
days of receipt of notification of the illegal activity.
(16) The landlord's claim for damages under subsection (15) of this
section may not include a claim for loss of business and is limited to:
(a) Damage to tangible property and clean-up costs;
(b) The lesser of the cost of repair or fair market value of the
damage directly caused by a law enforcement officer;
(c) The proceeds from the sale of the specific tenant's property
seized and forfeited under subsection (7)(b) of this section; and
(d) The proceeds available after the seizing law enforcement agency
satisfies any bona fide security interest in the tenant's property and
costs related to sale of the tenant's property as provided by
subsection (9)(b) of this section.
(17) Subsections (15) and (16) of this section do not limit any
other rights a landlord may have against a tenant to collect for
damages. However, if a law enforcement agency satisfies a landlord's
claim under subsection (15) of this section, the rights the landlord
has against the tenant for damages directly caused by a law enforcement
officer under the terms of the landlord and tenant's contract are
subrogated to the law enforcement agency.
Sec. 632 RCW 64.06.010 and 2007 c 107 s 3 are each amended to
read as follows:
This chapter does not apply to the following transfers of
residential real property:
(1) A foreclosure or deed-in-lieu of foreclosure;
(2) A gift or other transfer to a parent, spouse, domestic partner,
or child of a transferor or child of any parent ((or)), spouse, or
domestic partner of a transferor;
(3) A transfer between spouses or between domestic partners in
connection with a marital dissolution or dissolution of a state
registered domestic partnership;
(4) A transfer where a buyer had an ownership interest in the
property within two years of the date of the transfer including, but
not limited to, an ownership interest as a partner in a partnership, a
limited partner in a limited partnership, a shareholder in a
corporation, a leasehold interest, or transfers to and from a
facilitator pursuant to a tax deferred exchange;
(5) A transfer of an interest that is less than fee simple, except
that the transfer of a vendee's interest under a real estate contract
is subject to the requirements of this chapter;
(6) A transfer made by the personal representative of the estate of
the decedent or by a trustee in bankruptcy; and
(7) A transfer in which the buyer has expressly waived the receipt
of the seller disclosure statement. However, if the answer to any of
the questions in the section entitled "Environmental" would be "yes,"
the buyer may not waive the receipt of the "Environmental" section of
the seller disclosure statement.
Sec. 633 RCW 6.13.020 and 1987 c 442 s 202 are each amended to
read as follows:
If the owner is married or in a state registered domestic
partnership, the homestead may consist of the community or jointly
owned property of the spouses or the domestic partners or the separate
property of either spouse or either domestic partner: PROVIDED, That
the same premises may not be claimed separately by the ((husband and
wife)) spouses or domestic partners with the effect of increasing the
net value of the homestead available to the marital community or state
registered domestic partnership beyond the amount specified in RCW
6.13.030 as now or hereafter amended. When the owner is not married or
not in a state registered domestic partnership, the homestead may
consist of any of his or her property.
Sec. 634 RCW 6.13.060 and 1987 c 442 s 206 are each amended to
read as follows:
The homestead of a ((married person)) spouse or domestic partner
cannot be conveyed or encumbered unless the instrument by which it is
conveyed or encumbered is executed and acknowledged by both ((husband
and wife)) spouses or both domestic partners, except that ((a husband
or a wife)) either spouse or both or either domestic partner or both
jointly may make and execute powers of attorney for the conveyance or
encumbrance of the homestead.
Sec. 635 RCW 6.13.080 and 2007 c 429 s 2 are each amended to read
as follows:
The homestead exemption is not available against an execution or
forced sale in satisfaction of judgments obtained:
(1) On debts secured by mechanic's, laborer's, construction,
maritime, automobile repair, materialmen's or vendor's liens arising
out of and against the particular property claimed as a homestead;
(2) On debts secured (a) by security agreements describing as
collateral the property that is claimed as a homestead or (b) by
mortgages or deeds of trust on the premises that have been executed and
acknowledged by ((the husband and wife)) both spouses or both domestic
partners or by any ((unmarried)) claimant not married or in a state
registered domestic partnership;
(3) On one spouse's or one domestic partner's or the community's
debts existing at the time of that spouse's or that domestic partner's
bankruptcy filing where (a) bankruptcy is filed by both spouses or both
domestic partners within a six-month period, other than in a joint case
or a case in which their assets are jointly administered, and (b) the
other spouse or other domestic partner exempts property from property
of the estate under the bankruptcy exemption provisions of 11 U.S.C.
Sec. 522(d);
(4) On debts arising from a lawful court order or decree or
administrative order establishing a child support obligation or
obligation to pay ((spousal)) maintenance;
(5) On debts owing to the state of Washington for recovery of
medical assistance correctly paid on behalf of an individual consistent
with 42 U.S.C. Sec. 1396p;
(6) On debts secured by a condominium's or homeowner association's
lien. In order for an association to be exempt under this provision,
the association must have provided a homeowner with notice that
nonpayment of the association's assessment may result in foreclosure of
the association lien and that the homestead protection under this
chapter shall not apply. An association has complied with this notice
requirement by mailing the notice, by first-class mail, to the address
of the owner's lot or unit. The notice required in this subsection
shall be given within thirty days from the date the association learns
of a new owner, but in all cases the notice must be given prior to the
initiation of a foreclosure. The phrase "learns of a new owner" in
this subsection means actual knowledge of the identity of a homeowner
acquiring title after June 9, 1988, and does not require that an
association affirmatively ascertain the identity of a homeowner.
Failure to give the notice specified in this subsection affects an
association's lien only for debts accrued up to the time an association
complies with the notice provisions under this subsection; or
(7) On debts owed for taxes collected under chapters 82.08, 82.12,
and 82.14 RCW but not remitted to the department of revenue.
Sec. 636 RCW 6.13.180 and 1987 c 442 s 218 are each amended to
read as follows:
The money paid to the owner is entitled to the same protection
against legal process and the voluntary disposition of the ((husband or
wife)) other spouse or other domestic partner which the law gives to
the homestead.
Sec. 637 RCW 6.13.210 and 1987 c 442 s 221 are each amended to
read as follows:
In case of a homestead, if either ((the husband or wife)) spouse or
either domestic partner shall be or become incompetent or disabled to
such a degree that he or she is unable to assist in the management of
his or her interest in the ((marital)) property of the marriage or
domestic partnership and no guardian has been appointed, upon
application of the other spouse or other domestic partner to the
superior court of the county in which the homestead is situated, and
upon due proof of such incompetency or disability in the severity
required above, the court may make an order permitting the ((husband or
wife)) spouse or the domestic partner applying to the court to sell and
convey or mortgage such homestead.
Sec. 638 RCW 6.13.220 and 1987 c 442 s 222 are each amended to
read as follows:
Notice of the application for such order shall be given by
publication of the same in a newspaper published in the county in which
such homestead is situated, if there be a newspaper published therein,
once each week for three successive weeks prior to the hearing of such
application, and a copy of such notice shall be served upon the alleged
incompetent ((husband or wife)) spouse or domestic partner personally,
and upon the nearest relative of such incompetent or disabled ((husband
or wife)) spouse or domestic partner other than the applicant, resident
in this state, at least three weeks prior to such application being
heard, and in case there be no such relative known to the applicant, a
copy of such notice shall be served upon the prosecuting attorney of
the county in which such homestead is situated; and it is hereby made
the duty of such prosecuting attorney, upon being served with a copy of
such notice, to appear in court and see that such application is made
in good faith, and that the proceedings thereon are fairly conducted.
Sec. 639 RCW 6.13.230 and 1987 c 442 s 223 are each amended to
read as follows:
Thirty days before the hearing of any application under the
provisions of this chapter, the applicant shall present and file in the
court in which such application is to be heard a petition for the order
mentioned, subscribed and sworn to by the applicant, setting forth the
name and age of the alleged incompetent or disabled ((husband or wife))
spouse or domestic partner; a description of the premises constituting
the homestead; the value of the same; the county in which it is
situated; such facts necessary to show that the nonpetitioning
((husband or wife)) spouse or domestic partner is incompetent or
disabled to the degree required under RCW 6.13.210; and such additional
facts relating to the circumstances and necessities of the applicant
and his or her family as he or she may rely upon in support of the
petition.
Sec. 640 RCW 26.16.125 and Code 1881 s 2399 are each amended to
read as follows:
Henceforth the rights and responsibilities of the parents in the
absence of misconduct shall be equal, and ((the mother)) one parent
shall be as fully entitled to the custody, control and earnings of the
children as the ((father)) other parent, and in case of ((the
father's)) one parent's death, the ((mother)) other parent shall come
into ((as)) full and complete control of the children and their estate
((as the father does in case of the mother's death)).
Sec. 641 RCW 60.04.211 and 1991 c 281 s 21 are each amended to
read as follows:
The claim of lien, when filed as required by this chapter, shall be
notice to the ((husband or wife)) spouse or the domestic partner of the
person who appears of record to be the owner of the property sought to
be charged with the lien, and shall subject all the community interest
of both ((husband and wife)) spouses or both domestic partners to the
lien.
Sec. 701 RCW 82.45.010 and 2000 2nd sp.s. c 4 s 26 are each
amended to read as follows:
(1) As used in this chapter, the term "sale" shall have its
ordinary meaning and shall include any conveyance, grant, assignment,
quitclaim, or transfer of the ownership of or title to real property,
including standing timber, or any estate or interest therein for a
valuable consideration, and any contract for such conveyance, grant,
assignment, quitclaim, or transfer, and any lease with an option to
purchase real property, including standing timber, or any estate or
interest therein or other contract under which possession of the
property is given to the purchaser, or any other person at the
purchaser's direction, and title to the property is retained by the
vendor as security for the payment of the purchase price. The term
also includes the grant, assignment, quitclaim, sale, or transfer of
improvements constructed upon leased land.
(2) The term "sale" also includes the transfer or acquisition
within any twelve-month period of a controlling interest in any entity
with an interest in real property located in this state for a valuable
consideration. For purposes of this subsection, all acquisitions of
persons acting in concert shall be aggregated for purposes of
determining whether a transfer or acquisition of a controlling interest
has taken place. The department of revenue shall adopt standards by
rule to determine when persons are acting in concert. In adopting a
rule for this purpose, the department shall consider the following:
(a) Persons shall be treated as acting in concert when they have a
relationship with each other such that one person influences or
controls the actions of another through common ownership; and
(b) When persons are not commonly owned or controlled, they shall
be treated as acting in concert only when the unity with which the
purchasers have negotiated and will consummate the transfer of
ownership interests supports a finding that they are acting as a single
entity. If the acquisitions are completely independent, with each
purchaser buying without regard to the identity of the other
purchasers, then the acquisitions shall be considered separate
acquisitions.
(3) The term "sale" shall not include:
(a) A transfer by gift, devise, or inheritance.
(b) A transfer of any leasehold interest other than of the type
mentioned above.
(c) A cancellation or forfeiture of a vendee's interest in a
contract for the sale of real property, whether or not such contract
contains a forfeiture clause, or deed in lieu of foreclosure of a
mortgage.
(d) The partition of property by tenants in common by agreement or
as the result of a court decree.
(e) The assignment of property or interest in property from one
spouse or one domestic partner to the other spouse or other domestic
partner in accordance with the terms of a decree of ((divorce))
dissolution of marriage or state registered domestic partnership or in
fulfillment of a property settlement agreement.
(f) The assignment or other transfer of a vendor's interest in a
contract for the sale of real property, even though accompanied by a
conveyance of the vendor's interest in the real property involved.
(g) Transfers by appropriation or decree in condemnation
proceedings brought by the United States, the state or any political
subdivision thereof, or a municipal corporation.
(h) A mortgage or other transfer of an interest in real property
merely to secure a debt, or the assignment thereof.
(i) Any transfer or conveyance made pursuant to a deed of trust or
an order of sale by the court in any mortgage, deed of trust, or lien
foreclosure proceeding or upon execution of a judgment, or deed in lieu
of foreclosure to satisfy a mortgage or deed of trust.
(j) A conveyance to the federal housing administration or veterans
administration by an authorized mortgagee made pursuant to a contract
of insurance or guaranty with the federal housing administration or
veterans administration.
(k) A transfer in compliance with the terms of any lease or
contract upon which the tax as imposed by this chapter has been paid or
where the lease or contract was entered into prior to the date this tax
was first imposed.
(l) The sale of any grave or lot in an established cemetery.
(m) A sale by the United States, this state or any political
subdivision thereof, or a municipal corporation of this state.
(n) A sale to a regional transit authority or public corporation
under RCW 81.112.320 under a sale/leaseback agreement under RCW
81.112.300.
(o) A transfer of real property, however effected, if it consists
of a mere change in identity or form of ownership of an entity where
there is no change in the beneficial ownership. These include
transfers to a corporation or partnership which is wholly owned by the
transferor and/or the transferor's spouse or domestic partner or
children of the transferor or the transferor's spouse or domestic
partner: PROVIDED, That if thereafter such transferee corporation or
partnership voluntarily transfers such real property, or such
transferor, spouse or domestic partner, or children of the transferor
or the transferor's spouse or domestic partner voluntarily transfer
stock in the transferee corporation or interest in the transferee
partnership capital, as the case may be, to other than (1) the
transferor and/or the transferor's spouse or domestic partner or
children of the transferor or the transferor's spouse or domestic
partner, (2) a trust having the transferor and/or the transferor's
spouse or domestic partner or children of the transferor or the
transferor's spouse or domestic partner as the only beneficiaries at
the time of the transfer to the trust, or (3) a corporation or
partnership wholly owned by the original transferor and/or the
transferor's spouse or domestic partner or children of the transferor
or the transferor's spouse or domestic partner, within three years of
the original transfer to which this exemption applies, and the tax on
the subsequent transfer has not been paid within sixty days of becoming
due, excise taxes shall become due and payable on the original transfer
as otherwise provided by law.
(p)(i) A transfer that for federal income tax purposes does not
involve the recognition of gain or loss for entity formation,
liquidation or dissolution, and reorganization, including but not
limited to nonrecognition of gain or loss because of application of
section 332, 337, 351, 368(a)(1), 721, or 731 of the Internal Revenue
Code of 1986, as amended.
(ii) However, the transfer described in (p)(i) of this subsection
cannot be preceded or followed within a twelve-month period by another
transfer or series of transfers, that, when combined with the otherwise
exempt transfer or transfers described in (p)(i) of this subsection,
results in the transfer of a controlling interest in the entity for
valuable consideration, and in which one or more persons previously
holding a controlling interest in the entity receive cash or property
in exchange for any interest the person or persons acting in concert
hold in the entity. This subsection (3)(p)(ii) does not apply to that
part of the transfer involving property received that is the real
property interest that the person or persons originally contributed to
the entity or when one or more persons who did not contribute real
property or belong to the entity at a time when real property was
purchased receive cash or personal property in exchange for that person
or persons' interest in the entity. The real estate excise tax under
this subsection (3)(p)(ii) is imposed upon the person or persons who
previously held a controlling interest in the entity.
Sec. 702 RCW 84.38.030 and 2006 c 62 s 3 are each amended to read
as follows:
A claimant may defer payment of special assessments and/
(1) The claimant must meet all requirements for an exemption for
the residence under RCW 84.36.381, other than the age and income limits
under RCW 84.36.381.
(2) The claimant must be sixty years of age or older on December
31st of the year in which the deferral claim is filed, or must have
been, at the time of filing, retired from regular gainful employment by
reason of physical disability: PROVIDED, That any surviving spouse or
surviving domestic partner of a person who was receiving a deferral at
the time of the person's death shall qualify if the surviving spouse or
surviving domestic partner is fifty-seven years of age or older and
otherwise meets the requirements of this section.
(3) The claimant must have a combined disposable income, as defined
in RCW 84.36.383, of forty thousand dollars or less.
(4) The claimant must have owned, at the time of filing, the
residence on which the special assessment and/
(5) The claimant must have and keep in force fire and casualty
insurance in sufficient amount to protect the interest of the state in
the claimant's equity value: PROVIDED, That if the claimant fails to
keep fire and casualty insurance in force to the extent of the state's
interest in the claimant's equity value, the amount deferred shall not
exceed one hundred percent of the claimant's equity value in the land
or lot only.
(6) In the case of special assessment deferral, the claimant must
have opted for payment of such special assessments on the installment
method if such method was available.
Sec. 703 RCW 84.38.070 and 1975 1st ex.s. c 291 s 32 are each
amended to read as follows:
If the claimant declaring his or her intention to defer special
assessments or real property tax obligations under this chapter ceases
to reside permanently on the property for which the declaration to
defer is made between the date of filing the declaration and December
15th of that year, the deferral otherwise allowable under this chapter
shall not be allowed on such tax roll. However, this section shall not
apply where the claimant dies, leaving a spouse or domestic partner
surviving, who is also eligible for deferral of special assessment
and/or property taxes.
Sec. 704 RCW 84.38.130 and 1984 c 220 s 26 are each amended to
read as follows:
Special assessments and/or real property tax obligations deferred
under this chapter shall become payable together with interest as
provided in RCW 84.38.100:
(1) Upon the sale of property which has a deferred special
assessment and/or real property tax lien upon it.
(2) Upon the death of the claimant with an outstanding deferred
special assessment and/or real property tax lien except a surviving
spouse or surviving domestic partner who is qualified under this
chapter may elect to incur the special assessment and/or real property
tax lien which shall then be payable by that spouse or that domestic
partner as provided in this section.
(3) Upon the condemnation of property with a deferred special
assessment and/or real property tax lien upon it by a public or private
body exercising eminent domain power, except as otherwise provided in
RCW 84.60.070.
(4) At such time as the claimant ceases to reside permanently in
the residence upon which the deferral has been granted.
(5) Upon the failure of any condition set forth in RCW 84.38.030.
Sec. 705 RCW 84.38.150 and 1975 1st ex.s. c 291 s 40 are each
amended to read as follows:
(1) A surviving spouse or surviving domestic partner of the
claimant may elect to continue the property in its deferred tax status
if the property is the residence of the spouse or domestic partner of
the claimant and the spouse or domestic partner meets the requirements
of this chapter.
(2) The election under this section to continue the property in its
deferred status by the spouse or the domestic partner of the claimant
shall be filed in the same manner as an original claim for deferral is
filed under this chapter, not later than ninety days from the date of
the claimant's death. Thereupon, the property with respect to which
the deferral of special assessments and/or real property taxes is
claimed shall continue to be treated as deferred property. When the
property has been continued in its deferred status by the filing of the
spouse or the domestic partner of the claimant of an election under
this section, the spouse or the domestic partner of the claimant may
continue the property in its deferred status in subsequent years by
filing a claim under this chapter so long as the spouse or the domestic
partner meets the qualifications set out in this section.
Sec. 706 RCW 84.36.381 and 2005 c 248 s 2 are each amended to
read as follows:
A person shall be exempt from any legal obligation to pay all or a
portion of the amount of excess and regular real property taxes due and
payable in the year following the year in which a claim is filed, and
thereafter, in accordance with the following:
(1) The property taxes must have been imposed upon a residence
which was occupied by the person claiming the exemption as a principal
place of residence as of the time of filing: PROVIDED, That any person
who sells, transfers, or is displaced from his or her residence may
transfer his or her exemption status to a replacement residence, but no
claimant shall receive an exemption on more than one residence in any
year: PROVIDED FURTHER, That confinement of the person to a hospital,
nursing home, boarding home, or adult family home shall not disqualify
the claim of exemption if:
(a) The residence is temporarily unoccupied;
(b) The residence is occupied by a spouse or a domestic partner
and/or a person financially dependent on the claimant for support; or
(c) The residence is rented for the purpose of paying nursing home,
hospital, boarding home, or adult family home costs;
(2) The person claiming the exemption must have owned, at the time
of filing, in fee, as a life estate, or by contract purchase, the
residence on which the property taxes have been imposed or if the
person claiming the exemption lives in a cooperative housing
association, corporation, or partnership, such person must own a share
therein representing the unit or portion of the structure in which he
or she resides. For purposes of this subsection, a residence owned by
a marital community or state registered domestic partnership or owned
by cotenants shall be deemed to be owned by each spouse or each
domestic partner or each cotenant, and any lease for life shall be
deemed a life estate;
(3) The person claiming the exemption must be (a) sixty-one years
of age or older on December 31st of the year in which the exemption
claim is filed, or must have been, at the time of filing, retired from
regular gainful employment by reason of disability, or (b) a veteran of
the armed forces of the United States with one hundred percent service-connected disability as provided in 42 U.S.C. Sec. 423 (d)(1)(A) as
amended prior to January 1, 2005. However, any surviving spouse or
surviving domestic partner of a person who was receiving an exemption
at the time of the person's death shall qualify if the surviving spouse
or surviving domestic partner is fifty-seven years of age or older and
otherwise meets the requirements of this section;
(4) The amount that the person shall be exempt from an obligation
to pay shall be calculated on the basis of combined disposable income,
as defined in RCW 84.36.383. If the person claiming the exemption was
retired for two months or more of the assessment year, the combined
disposable income of such person shall be calculated by multiplying the
average monthly combined disposable income of such person during the
months such person was retired by twelve. If the income of the person
claiming exemption is reduced for two or more months of the assessment
year by reason of the death of the person's spouse or the person's
domestic partner, or when other substantial changes occur in disposable
income that are likely to continue for an indefinite period of time,
the combined disposable income of such person shall be calculated by
multiplying the average monthly combined disposable income of such
person after such occurrences by twelve. If it is necessary to
estimate income to comply with this subsection, the assessor may
require confirming documentation of such income prior to May 31 of the
year following application;
(5)(a) A person who otherwise qualifies under this section and has
a combined disposable income of thirty-five thousand dollars or less
shall be exempt from all excess property taxes; and
(b)(i) A person who otherwise qualifies under this section and has
a combined disposable income of thirty thousand dollars or less but
greater than twenty-five thousand dollars shall be exempt from all
regular property taxes on the greater of fifty thousand dollars or
thirty-five percent of the valuation of his or her residence, but not
to exceed seventy thousand dollars of the valuation of his or her
residence; or
(ii) A person who otherwise qualifies under this section and has a
combined disposable income of twenty-five thousand dollars or less
shall be exempt from all regular property taxes on the greater of sixty
thousand dollars or sixty percent of the valuation of his or her
residence;
(6) For a person who otherwise qualifies under this section and has
a combined disposable income of thirty-five thousand dollars or less,
the valuation of the residence shall be the assessed value of the
residence on the later of January 1, 1995, or January 1st of the
assessment year the person first qualifies under this section. If the
person subsequently fails to qualify under this section only for one
year because of high income, this same valuation shall be used upon
requalification. If the person fails to qualify for more than one year
in succession because of high income or fails to qualify for any other
reason, the valuation upon requalification shall be the assessed value
on January 1st of the assessment year in which the person requalifies.
If the person transfers the exemption under this section to a different
residence, the valuation of the different residence shall be the
assessed value of the different residence on January 1st of the
assessment year in which the person transfers the exemption.
In no event may the valuation under this subsection be greater than
the true and fair value of the residence on January 1st of the
assessment year.
This subsection does not apply to subsequent improvements to the
property in the year in which the improvements are made. Subsequent
improvements to the property shall be added to the value otherwise
determined under this subsection at their true and fair value in the
year in which they are made.
Sec. 707 RCW 84.36.041 and 2001 c 187 s 14 are each amended to
read as follows:
(1) All real and personal property used by a nonprofit home for the
aging that is reasonably necessary for the purposes of the home is
exempt from taxation if the benefit of the exemption inures to the home
and:
(a) At least fifty percent of the occupied dwelling units in the
home are occupied by eligible residents; or
(b) The home is subsidized under a federal department of housing
and urban development program. The department of revenue shall provide
by rule a definition of homes eligible for exemption under this
subsection (1)(b), consistent with the purposes of this section.
(2) All real and personal property used by a nonprofit home for the
aging that is reasonably necessary for the purposes of the home is
exempt from taxation if the benefit of the exemption inures to the home
and the construction, rehabilitation, acquisition, or refinancing of
the home is financed under a program using bonds exempt from federal
income tax if at least seventy-five percent of the total amount
financed uses the tax exempt bonds and the financing program requires
the home to reserve a percentage of all dwelling units so financed for
low-income residents. The initial term of the exemption under this
subsection shall equal the term of the tax exempt bond used in
connection with the financing program, or the term of the requirement
to reserve dwelling units for low-income residents, whichever is
shorter. If the financing program involves less than the entire home,
only those dwelling units included in the financing program are
eligible for total exemption. The department of revenue shall provide
by rule the requirements for monitoring compliance with the provisions
of this subsection and the requirements for exemption including:
(a) The number or percentage of dwelling units required to be
occupied by low-income residents, and a definition of low income;
(b) The type and character of the dwelling units, whether
independent units or otherwise; and
(c) Any particular requirements for continuing care retirement
communities.
(3) A home for the aging is eligible for a partial exemption on the
real property and a total exemption for the home's personal property if
the home does not meet the requirements of subsection (1) of this
section because fewer than fifty percent of the occupied dwelling units
are occupied by eligible residents, as follows:
(a) A partial exemption shall be allowed for each dwelling unit in
a home occupied by a resident requiring assistance with activities of
daily living.
(b) A partial exemption shall be allowed for each dwelling unit in
a home occupied by an eligible resident.
(c) A partial exemption shall be allowed for an area jointly used
by a home for the aging and by a nonprofit organization, association,
or corporation currently exempt from property taxation under one of the
other provisions of this chapter. The shared area must be reasonably
necessary for the purposes of the nonprofit organization, association,
or corporation exempt from property taxation under one of the other
provisions of this chapter, such as kitchen, dining, and laundry areas.
(d) The amount of exemption shall be calculated by multiplying the
assessed value of the property reasonably necessary for the purposes of
the home, less the assessed value of any area exempt under (c) of this
subsection, by a fraction. The numerator of the fraction is the number
of dwelling units occupied by eligible residents and by residents
requiring assistance with activities of daily living. The denominator
of the fraction is the total number of occupied dwelling units as of
December 31st of the first assessment year the home becomes operational
for which exemption is claimed and January 1st of each subsequent
assessment year for which exemption is claimed.
(4) To be exempt under this section, the property must be used
exclusively for the purposes for which the exemption is granted, except
as provided in RCW 84.36.805.
(5) A home for the aging is exempt from taxation only if the
organization operating the home is exempt from income tax under section
501(c) of the federal internal revenue code as existing on January 1,
1989, or such subsequent date as the director may provide by rule
consistent with the purposes of this section.
(6) In order for the home to be eligible for exemption under
subsections (1)(a) and (3)(b) of this section, each eligible resident
of a home for the aging shall submit an income verification form to the
county assessor by July 1st of the assessment year for which exemption
is claimed. However, during the first year a home becomes operational,
the county assessor shall accept income verification forms from
eligible residents up to December 31st of the assessment year. The
income verification form shall be prescribed and furnished by the
department of revenue. An eligible resident who has filed a form for
a previous year need not file a new form until there is a change in
status affecting the person's eligibility.
(7) In determining the true and fair value of a home for the aging
for purposes of the partial exemption provided by subsection (3) of
this section, the assessor shall apply the computation method provided
by RCW 84.34.060 and shall consider only the use to which such property
is applied during the years for which such partial exemptions are
available and shall not consider potential uses of such property.
(8) As used in this section:
(a) "Eligible resident" means a person who:
(i) Occupied the dwelling unit as a principal place of residence as
of December 31st of the first assessment year the home becomes
operational. In each subsequent year, the eligible resident must
occupy the dwelling unit as a principal place of residence as of
January 1st of the assessment year for which the exemption is claimed.
Confinement of the person to a hospital or nursing home does not
disqualify the claim of exemption if the dwelling unit is temporarily
unoccupied or if the dwelling unit is occupied by a spouse or a
domestic partner, a person financially dependent on the claimant for
support, or both; and
(ii) Is sixty-one years of age or older on December 31st of the
year in which the exemption claim is filed, or is, at the time of
filing, retired from regular gainful employment by reason of physical
disability. Any surviving spouse or surviving domestic partner of a
person who was receiving an exemption at the time of the person's death
shall qualify if the surviving spouse or surviving domestic partner is
fifty-seven years of age or older and otherwise meets the requirements
of this subsection; and
(iii) Has a combined disposable income of no more than the greater
of twenty-two thousand dollars or eighty percent of the median income
adjusted for family size as most recently determined by the federal
department of housing and urban development for the county in which the
person resides. For the purposes of determining eligibility under this
section, a "cotenant" means a person who resides with an eligible
resident and who shares personal financial resources with the eligible
resident.
(b) "Combined disposable income" means the disposable income of the
person submitting the income verification form, plus the disposable
income of his or her spouse or domestic partner, and the disposable
income of each cotenant occupying the dwelling unit for the preceding
calendar year, less amounts paid by the person submitting the income
verification form or his or her spouse or domestic partner or cotenant
during the previous year for the treatment or care of either person
received in the dwelling unit or in a nursing home. If the person
submitting the income verification form was retired for two months or
more of the preceding year, the combined disposable income of such
person shall be calculated by multiplying the average monthly combined
disposable income of such person during the months such person was
retired by twelve. If the income of the person submitting the income
verification form is reduced for two or more months of the preceding
year by reason of the death of the person's spouse or domestic partner,
the combined disposable income of such person shall be calculated by
multiplying the average monthly combined disposable income of such
person after the death of the spouse or domestic partner by twelve.
(c) "Disposable income" means adjusted gross income as defined in
the federal internal revenue code, as amended prior to January 1, 1989,
or such subsequent date as the director may provide by rule consistent
with the purpose of this section, plus all of the following items to
the extent they are not included in or have been deducted from adjusted
gross income:
(i) Capital gains, other than gain excluded from income under
section 121 of the federal internal revenue code to the extent it is
reinvested in a new principal residence;
(ii) Amounts deducted for loss;
(iii) Amounts deducted for depreciation;
(iv) Pension and annuity receipts;
(v) Military pay and benefits other than attendant-care and
medical-aid payments;
(vi) Veterans benefits other than attendant-care and medical-aid
payments;
(vii) Federal social security act and railroad retirement benefits;
(viii) Dividend receipts; and
(ix) Interest received on state and municipal bonds.
(d) "Resident requiring assistance with activities of daily living"
means a person who requires significant assistance with the activities
of daily living and who would be at risk of nursing home placement
without this assistance.
(e) "Home for the aging" means a residential housing facility that
(i) provides a housing arrangement chosen voluntarily by the resident,
the resident's guardian or conservator, or another responsible person;
(ii) has only residents who are at least sixty-one years of age or who
have needs for care generally compatible with persons who are at least
sixty-one years of age; and (iii) provides varying levels of care and
supervision, as agreed to at the time of admission or as determined
necessary at subsequent times of reappraisal.
(9) A for-profit home for the aging that converts to nonprofit
status after June 11, 1992, and would otherwise be eligible for tax
exemption under this section may not receive the tax exemption until
five years have elapsed since the conversion. The exemption shall then
be ratably granted over the next five years.
Sec. 708 RCW 84.36.120 and 1973 1st ex.s. c 154 s 120 are each
amended to read as follows:
For the purposes of RCW 84.36.110 "head of a family" shall be
construed to include a surviving spouse ((not)) or surviving domestic
partner who has neither remarried nor entered into a subsequent
domestic partnership, any person receiving an old age pension under the
laws of this state and any citizen of the United States, over the age
of sixty-five years, who has resided in the state of Washington
continuously for ten years.
"Personal effects" shall be construed to mean and include such
tangible property as usually and ordinarily attends the person such as
wearing apparel, jewelry, toilet articles and the like.
"Private motor vehicle" shall be construed to mean and include all
motor vehicles used for the convenience or pleasure of the owner and
carrying a licensing classification other than motor vehicle for hire,
auto stage, auto stage trailer, motor truck, motor truck trailer or
dealers' licenses.
"Mobile home" shall be construed to mean and include all trailers
of the type designed as facilities for human habitation and which are
capable of being moved upon the public streets and highways and which
are more than thirty-five feet in length or more than eight feet in
width.
Sec. 709 RCW 84.36.383 and 2006 c 62 s 1 are each amended to read
as follows:
As used in RCW 84.36.381 through 84.36.389, except where the
context clearly indicates a different meaning:
(1) The term "residence" means a single family dwelling unit
whether such unit be separate or part of a multiunit dwelling,
including the land on which such dwelling stands not to exceed one
acre, except that a residence includes any additional property up to a
total of five acres that comprises the residential parcel if this
larger parcel size is required under land use regulations. The term
shall also include a share ownership in a cooperative housing
association, corporation, or partnership if the person claiming
exemption can establish that his or her share represents the specific
unit or portion of such structure in which he or she resides. The term
shall also include a single family dwelling situated upon lands the fee
of which is vested in the United States or any instrumentality thereof
including an Indian tribe or in the state of Washington, and
notwithstanding the provisions of RCW 84.04.080 and 84.04.090, such a
residence shall be deemed real property.
(2) The term "real property" shall also include a mobile home which
has substantially lost its identity as a mobile unit by virtue of its
being fixed in location upon land owned or leased by the owner of the
mobile home and placed on a foundation (posts or blocks) with fixed
pipe, connections with sewer, water, or other utilities. A mobile home
located on land leased by the owner of the mobile home is subject, for
tax billing, payment, and collection purposes, only to the personal
property provisions of chapter 84.56 RCW and RCW 84.60.040.
(3) "Department" means the state department of revenue.
(4) "Combined disposable income" means the disposable income of the
person claiming the exemption, plus the disposable income of his or her
spouse or domestic partner, and the disposable income of each cotenant
occupying the residence for the assessment year, less amounts paid by
the person claiming the exemption or his or her spouse or domestic
partner during the assessment year for:
(a) Drugs supplied by prescription of a medical practitioner
authorized by the laws of this state or another jurisdiction to issue
prescriptions;
(b) The treatment or care of either person received in the home or
in a nursing home, boarding home, or adult family home; and
(c) Health care insurance premiums for medicare under Title XVIII
of the social security act.
(5) "Disposable income" means adjusted gross income as defined in
the federal internal revenue code, as amended prior to January 1, 1989,
or such subsequent date as the director may provide by rule consistent
with the purpose of this section, plus all of the following items to
the extent they are not included in or have been deducted from adjusted
gross income:
(a) Capital gains, other than gain excluded from income under
section 121 of the federal internal revenue code to the extent it is
reinvested in a new principal residence;
(b) Amounts deducted for loss;
(c) Amounts deducted for depreciation;
(d) Pension and annuity receipts;
(e) Military pay and benefits other than attendant-care and
medical-aid payments;
(f) Veterans benefits other than attendant-care and medical-aid
payments;
(g) Federal social security act and railroad retirement benefits;
(h) Dividend receipts; and
(i) Interest received on state and municipal bonds.
(6) "Cotenant" means a person who resides with the person claiming
the exemption and who has an ownership interest in the residence.
(7) "Disability" has the same meaning as provided in 42 U.S.C. Sec.
423(d)(1)(A) as amended prior to January 1, 2004, or such subsequent
date as the director may provide by rule consistent with the purpose of
this section.
Sec. 710 RCW 84.37.080 and 2007 sp.s. c 2 s 8 are each amended to
read as follows:
Special assessments or real property tax obligations, or both,
deferred under this chapter shall become payable together with interest
as provided in RCW 84.37.070:
(1) Upon the sale of property which has a deferred special
assessment lien or real property tax lien, or both, upon it;
(2) Upon the death of the claimant with an outstanding deferred
special assessment lien or real property tax lien, or both, except a
surviving spouse or surviving domestic partner who is qualified under
this chapter may elect to incur the special assessment lien or real
property tax lien, or both, which shall then be payable by that spouse
or that domestic partner as provided in this section;
(3) Upon the condemnation of property with a deferred special
assessment lien or real property tax lien, or both, upon it by a public
or private body exercising eminent domain power, except as otherwise
provided in RCW 84.60.070; or
(4) At such time as the claimant ceases to reside permanently in
the residence upon which the deferral has been granted.
Sec. 801 RCW 7.36.020 and 1977 ex.s. c 80 s 8 are each amended to
read as follows:
Writs of habeas corpus shall be granted in favor of parents,
guardians, limited guardians where appropriate, spouses or domestic
partners, and next of kin, and to enforce the rights, and for the
protection of infants and incompetent or disabled persons within the
meaning of RCW 11.88.010; and the proceedings shall in all cases
conform to the provisions of this chapter.
Sec. 802 RCW 11.88.010 and 2005 c 236 s 3 are each amended to
read as follows:
(1) The superior court of each county shall have power to appoint
guardians for the persons and/or estates of incapacitated persons, and
guardians for the estates of nonresidents of the state who have
property in the county needing care and attention.
(a) For purposes of this chapter, a person may be deemed
incapacitated as to person when the superior court determines the
individual has a significant risk of personal harm based upon a
demonstrated inability to adequately provide for nutrition, health,
housing, or physical safety.
(b) For purposes of this chapter, a person may be deemed
incapacitated as to the person's estate when the superior court
determines the individual is at significant risk of financial harm
based upon a demonstrated inability to adequately manage property or
financial affairs.
(c) A determination of incapacity is a legal not a medical
decision, based upon a demonstration of management insufficiencies over
time in the area of person or estate. Age, eccentricity, poverty, or
medical diagnosis alone shall not be sufficient to justify a finding of
incapacity.
(d) A person may also be determined incapacitated if he or she is
under the age of majority as defined in RCW 26.28.010.
(e) For purposes of giving informed consent for health care
pursuant to RCW 7.70.050 and 7.70.065, an "incompetent" person is any
person who is (i) incompetent by reason of mental illness,
developmental disability, senility, habitual drunkenness, excessive use
of drugs, or other mental incapacity, of either managing his or her
property or caring for himself or herself, or both, or (ii)
incapacitated as defined in (a), (b), or (d) of this subsection.
(f) For purposes of the terms "incompetent," "disabled," or "not
legally competent," as those terms are used in the Revised Code of
Washington to apply to persons incapacitated under this chapter, those
terms shall be interpreted to mean "incapacitated" persons for purposes
of this chapter.
(2) The superior court for each county shall have power to appoint
limited guardians for the persons and estates, or either thereof, of
incapacitated persons, who by reason of their incapacity have need for
protection and assistance, but who are capable of managing some of
their personal and financial affairs. After considering all evidence
presented as a result of such investigation, the court shall impose, by
order, only such specific limitations and restrictions on an
incapacitated person to be placed under a limited guardianship as the
court finds necessary for such person's protection and assistance. A
person shall not be presumed to be incapacitated nor shall a person
lose any legal rights or suffer any legal disabilities as the result of
being placed under a limited guardianship, except as to those rights
and disabilities specifically set forth in the court order establishing
such a limited guardianship. In addition, the court order shall state
the period of time for which it shall be applicable.
(3) Venue for petitions for guardianship or limited guardianship
shall lie in the county wherein the alleged incapacitated person is
domiciled, or if such person resides in a facility supported in whole
or in part by local, state, or federal funding sources, in either the
county where the facility is located, the county of domicile prior to
residence in the supported facility, or the county where a parent or
spouse or domestic partner of the alleged incapacitated person is
domiciled.
If the alleged incapacitated person's residency has changed within
one year of the filing of the petition, any interested person may move
for a change of venue for any proceedings seeking the appointment of a
guardian or a limited guardian under this chapter to the county of the
alleged incapacitated person's last place of residence of one year or
more. The motion shall be granted when it appears to the court that
such venue would be in the best interests of the alleged incapacitated
person and would promote more complete consideration of all relevant
matters.
(4) Under RCW 11.94.010, a principal may nominate, by a durable
power of attorney, the guardian or limited guardian of his or her
estate or person for consideration by the court if guardianship
proceedings for the principal's person or estate are thereafter
commenced. The court shall make its appointment in accordance with the
principal's most recent nomination in a durable power of attorney
except for good cause or disqualification.
(5) Imposition of a guardianship for an incapacitated person shall
not result in the loss of the right to vote unless the court determines
that the person is incompetent for purposes of rationally exercising
the franchise in that the individual lacks the capacity to understand
the nature and effect of voting such that she or he cannot make an
individual choice. The court order establishing guardianship shall
specify whether or not the individual retains voting rights. When a
court determines that the person is incompetent for the purpose of
rationally exercising the right to vote, the court shall notify the
appropriate county auditor.
Sec. 803 RCW 11.88.040 and 1995 c 297 s 2 are each amended to
read as follows:
Before appointing a guardian or a limited guardian, notice of a
hearing, to be held not less than ten days after service thereof, shall
be served personally upon the alleged incapacitated person, if over
fourteen years of age, and served upon the guardian ad litem.
Before appointing a guardian or a limited guardian, notice of a
hearing, to be held not less than ten days after service thereof, shall
be given by registered or certified mail to the last known address
requesting a return receipt signed by the addressee or an agent
appointed by the addressee, or by personal service in the manner
provided for services of summons, to the following:
(1) The alleged incapacitated person, or minor, if under fourteen
years of age;
(2) A parent, if the alleged incapacitated person is a minor, all
known children not residing with a notified person, and the spouse or
domestic partner of the alleged incapacitated person if any;
(3) Any other person who has been appointed as guardian or limited
guardian, or the person with whom the alleged incapacitated person
resides. No notice need be given to those persons named in subsections
(2) and (3) of this section if they have signed the petition for the
appointment of the guardian or limited guardian or have waived notice
of the hearing.
(4) If the petition is by a parent asking for appointment as
guardian or limited guardian of a minor child under the age of fourteen
years, or if the petition is accompanied by the written consent of a
minor of the age of fourteen years or upward, who consents to the
appointment of the guardian or limited guardian asked for, or if the
petition is by a nonresident guardian of any minor or incapacitated
person, then the court may appoint the guardian without notice of the
hearing. The court for good cause may reduce the number of days of
notice, but in every case, at least three days notice shall be given.
The alleged incapacitated person shall be present in court at the
final hearing on the petition: PROVIDED, That this requirement may be
waived at the discretion of the court for good cause other than mere
inconvenience shown in the report to be provided by the guardian ad
litem pursuant to RCW 11.88.090 as now or hereafter amended, or if no
guardian ad litem is required to be appointed pursuant to RCW
11.88.090, as now or hereafter amended, at the discretion of the court
for good cause shown by a party. Alternatively, the court may remove
itself to the place of residence of the alleged incapacitated person
and conduct the final hearing in the presence of the alleged
incapacitated person. Final hearings on the petition may be held in
closed court without admittance of any person other than those
necessary to the action or proceeding.
If presence of the alleged incapacitated person is waived and the
court does not remove itself to the place of residence of such person,
the guardian ad litem shall appear in person at the final hearing on
the petition.
Sec. 804 RCW 11.88.090 and 2000 c 124 s 1 are each amended to
read as follows:
(1) Nothing contained in RCW 11.88.080 through 11.88.120, 11.92.010
through 11.92.040, 11.92.060 through 11.92.120, 11.92.170, and
11.92.180 shall affect or impair the power of any court to appoint a
guardian ad litem to defend the interests of any incapacitated person
interested in any suit or matter pending therein, or to commence and
prosecute any suit in his or her behalf.
(2) Prior to the appointment of a guardian or a limited guardian,
whenever it appears that the incapacitated person or incapacitated
person's estate could benefit from mediation and such mediation would
likely result in overall reduced costs to the estate, upon the motion
of the alleged incapacitated person or the guardian ad litem, or
subsequent to such appointment, whenever it appears that the
incapacitated person or incapacitated person's estate could benefit
from mediation and such mediation would likely result in overall
reduced costs to the estate, upon the motion of any interested person,
the court may:
(a) Require any party or other person subject to the jurisdiction
of the court to participate in mediation;
(b) Establish the terms of the mediation; and
(c) Allocate the cost of the mediation pursuant to RCW 11.96.140.
(3) Upon receipt of a petition for appointment of guardian or
limited guardian, except as provided herein, the court shall appoint a
guardian ad litem to represent the best interests of the alleged
incapacitated person, who shall be a person found or known by the court
to:
(a) Be free of influence from anyone interested in the result of
the proceeding; and
(b) Have the requisite knowledge, training, or expertise to perform
the duties required by this section.
The guardian ad litem shall within five days of receipt of notice
of appointment file with the court and serve, either personally or by
certified mail with return receipt, each party with a statement
including: His or her training relating to the duties as a guardian ad
litem; his or her criminal history as defined in RCW 9.94A.030 for the
period covering ten years prior to the appointment; his or her hourly
rate, if compensated; whether the guardian ad litem has had any contact
with a party to the proceeding prior to his or her appointment; and
whether he or she has an apparent conflict of interest. Within three
days of the later of the actual service or filing of the guardian ad
litem's statement, any party may set a hearing and file and serve a
motion for an order to show cause why the guardian ad litem should not
be removed for one of the following three reasons: (i) Lack of
expertise necessary for the proceeding; (ii) an hourly rate higher than
what is reasonable for the particular proceeding; or (iii) a conflict
of interest. Notice of the hearing shall be provided to the guardian
ad litem and all parties. If, after a hearing, the court enters an
order replacing the guardian ad litem, findings shall be included,
expressly stating the reasons for the removal. If the guardian ad
litem is not removed, the court has the authority to assess to the
moving party, attorneys' fees and costs related to the motion. The
court shall assess attorneys' fees and costs for frivolous motions.
No guardian ad litem need be appointed when a parent is petitioning
for a guardian or a limited guardian to be appointed for his or her
minor child and the minority of the child, as defined by RCW 11.92.010,
is the sole basis of the petition. The order appointing the guardian
ad litem shall recite the duties set forth in subsection (5) of this
section. The appointment of a guardian ad litem shall have no effect
on the legal competency of the alleged incapacitated person and shall
not overcome the presumption of competency or full legal and civil
rights of the alleged incapacitated person.
(4)(a) The superior court of each county shall develop and maintain
a registry of persons who are willing and qualified to serve as
guardians ad litem in guardianship matters. The court shall choose as
guardian ad litem a person whose name appears on the registry in a
system of consistent rotation, except in extraordinary circumstances
such as the need for particular expertise. The court shall develop
procedures for periodic review of the persons on the registry and for
probation, suspension, or removal of persons on the registry for
failure to perform properly their duties as guardian ad litem. In the
event the court does not select the person next on the list, it shall
include in the order of appointment a written reason for its decision.
(b) To be eligible for the registry a person shall:
(i) Present a written statement outlining his or her background and
qualifications. The background statement shall include, but is not
limited to, the following information:
(A) Level of formal education;
(B) Training related to the guardian ad litem's duties;
(C) Number of years' experience as a guardian ad litem;
(D) Number of appointments as a guardian ad litem and the county or
counties of appointment;
(E) Criminal history, as defined in RCW 9.94A.030; and
(F) Evidence of the person's knowledge, training, and experience in
each of the following: Needs of impaired elderly people, physical
disabilities, mental illness, developmental disabilities, and other
areas relevant to the needs of incapacitated persons, legal procedure,
and the requirements of chapters 11.88 and 11.92 RCW.
The written statement of qualifications shall include the names of
any counties in which the person was removed from a guardian ad litem
registry pursuant to a grievance action, and the name of the court and
the cause number of any case in which the court has removed the person
for cause; and
(ii) Complete the training as described in (e) of this subsection.
The training is not applicable to guardians ad litem appointed pursuant
to special proceeding Rule 98.16W.
(c) Superior court shall remove any person from the guardian ad
litem registry who misrepresents his or her qualifications pursuant to
a grievance procedure established by the court.
(d) The background and qualification information shall be updated
annually.
(e) The department of social and health services shall convene an
advisory group to develop a model guardian ad litem training program
and shall update the program biennially. The advisory group shall
consist of representatives from consumer, advocacy, and professional
groups knowledgeable in developmental disabilities, neurological
impairment, physical disabilities, mental illness, domestic violence,
aging, legal, court administration, the Washington state bar
association, and other interested parties.
(f) The superior court shall require utilization of the model
program developed by the advisory group as described in (e) of this
subsection, to assure that candidates applying for registration as a
qualified guardian ad litem shall have satisfactorily completed
training to attain these essential minimum qualifications to act as
guardian ad litem.
(5) The guardian ad litem appointed pursuant to this section shall
have the following duties:
(a) To meet and consult with the alleged incapacitated person as
soon as practicable following appointment and explain, in language
which such person can reasonably be expected to understand, the
substance of the petition, the nature of the resultant proceedings, the
person's right to contest the petition, the identification of the
proposed guardian or limited guardian, the right to a jury trial on the
issue of his or her alleged incapacity, the right to independent legal
counsel as provided by RCW 11.88.045, and the right to be present in
court at the hearing on the petition;
(b) To obtain a written report according to RCW 11.88.045; and such
other written or oral reports from other qualified professionals as are
necessary to permit the guardian ad litem to complete the report
required by this section;
(c) To meet with the person whose appointment is sought as guardian
or limited guardian and ascertain:
(i) The proposed guardian's knowledge of the duties, requirements,
and limitations of a guardian; and
(ii) The steps the proposed guardian intends to take or has taken
to identify and meet the needs of the alleged incapacitated person;
(d) To consult as necessary to complete the investigation and
report required by this section with those known relatives, friends, or
other persons the guardian ad litem determines have had a significant,
continuing interest in the welfare of the alleged incapacitated person;
(e) To investigate alternate arrangements made, or which might be
created, by or on behalf of the alleged incapacitated person, such as
revocable or irrevocable trusts, durable powers of attorney, or blocked
accounts; whether good cause exists for any such arrangements to be
discontinued; and why such arrangements should not be continued or
created in lieu of a guardianship;
(f) To provide the court with a written report which shall include
the following:
(i) A description of the nature, cause, and degree of incapacity,
and the basis upon which this judgment was made;
(ii) A description of the needs of the incapacitated person for
care and treatment, the probable residential requirements of the
alleged incapacitated person and the basis upon which these findings
were made;
(iii) An evaluation of the appropriateness of the guardian or
limited guardian whose appointment is sought and a description of the
steps the proposed guardian has taken or intends to take to identify
and meet current and emerging needs of the incapacitated person;
(iv) A description of any alternative arrangements previously made
by the alleged incapacitated person or which could be made, and whether
and to what extent such alternatives should be used in lieu of a
guardianship, and if the guardian ad litem is recommending
discontinuation of any such arrangements, specific findings as to why
such arrangements are contrary to the best interest of the alleged
incapacitated person;
(v) A description of the abilities of the alleged incapacitated
person and a recommendation as to whether a guardian or limited
guardian should be appointed. If appointment of a limited guardian is
recommended, the guardian ad litem shall recommend the specific areas
of authority the limited guardian should have and the limitations and
disabilities to be placed on the incapacitated person;
(vi) An evaluation of the person's mental ability to rationally
exercise the right to vote and the basis upon which the evaluation is
made;
(vii) Any expression of approval or disapproval made by the alleged
incapacitated person concerning the proposed guardian or limited
guardian or guardianship or limited guardianship;
(viii) Identification of persons with significant interest in the
welfare of the alleged incapacitated person who should be advised of
their right to request special notice of proceedings pursuant to RCW
11.92.150; and
(ix) Unless independent counsel has appeared for the alleged
incapacitated person, an explanation of how the alleged incapacitated
person responded to the advice of the right to jury trial, to
independent counsel and to be present at the hearing on the petition.
Within forty-five days after notice of commencement of the
guardianship proceeding has been served upon the guardian ad litem, and
at least fifteen days before the hearing on the petition, unless an
extension or reduction of time has been granted by the court for good
cause, the guardian ad litem shall file its report and send a copy to
the alleged incapacitated person and his or her counsel, spouse or
domestic partner, all children not residing with a notified person,
those persons described in (f)(viii) of this subsection, and persons
who have filed a request for special notice pursuant to RCW 11.92.150.
If the guardian ad litem needs additional time to finalize his or her
report, then the guardian ad litem shall petition the court for a
postponement of the hearing or, with the consent of all other parties,
an extension or reduction of time for filing the report. If the
hearing does not occur within sixty days of filing the petition, then
upon the two-month anniversary of filing the petition and on or before
the same day of each following month until the hearing, the guardian ad
litem shall file interim reports summarizing his or her activities on
the proceeding during that time period as well as fees and costs
incurred;
(g) To advise the court of the need for appointment of counsel for
the alleged incapacitated person within five court days after the
meeting described in (a) of this subsection unless (i) counsel has
appeared, (ii) the alleged incapacitated person affirmatively
communicated a wish not to be represented by counsel after being
advised of the right to representation and of the conditions under
which court-provided counsel may be available, or (iii) the alleged
incapacitated person was unable to communicate at all on the subject,
and the guardian ad litem is satisfied that the alleged incapacitated
person does not affirmatively desire to be represented by counsel.
(6) If the petition is brought by an interested person or entity
requesting the appointment of some other qualified person or entity and
a prospective guardian or limited guardian cannot be found, the court
shall order the guardian ad litem to investigate the availability of a
possible guardian or limited guardian and to include the findings in a
report to the court pursuant to subsection (5)(f) of this section.
(7) The parties to the proceeding may file responses to the
guardian ad litem report with the court and deliver such responses to
the other parties and the guardian ad litem at any time up to the
second day prior to the hearing. If a guardian ad litem fails to file
his or her report in a timely manner, the hearing shall be continued to
give the court and the parties at least fifteen days before the hearing
to review the report. At any time during the proceeding upon motion of
any party or on the court's own motion, the court may remove the
guardian ad litem for failure to perform his or her duties as specified
in this chapter, provided that the guardian ad litem shall have five
days' notice of any motion to remove before the court enters such
order. In addition, the court in its discretion may reduce a guardian
ad litem's fee for failure to carry out his or her duties.
(8) The court appointed guardian ad litem shall have the authority,
in the event that the alleged incapacitated person is in need of
emergency life-saving medical services, and is unable to consent to
such medical services due to incapacity pending the hearing on the
petition to give consent for such emergency life-saving medical
services on behalf of the alleged incapacitated person.
(9) The court-appointed guardian ad litem shall have the authority
to move for temporary relief under chapter 7.40 RCW to protect the
alleged incapacitated person from abuse, neglect, abandonment, or
exploitation, as those terms are defined in RCW 74.34.020, or to
address any other emergency needs of the alleged incapacitated person.
Any alternative arrangement executed before filing the petition for
guardianship shall remain effective unless the court grants the relief
requested under chapter 7.40 RCW, or unless, following notice and a
hearing at which all parties directly affected by the arrangement are
present, the court finds that the alternative arrangement should not
remain effective.
(10) The guardian ad litem shall receive a fee determined by the
court. The fee shall be charged to the alleged incapacitated person
unless the court finds that such payment would result in substantial
hardship upon such person, in which case the county shall be
responsible for such costs: PROVIDED, That the court may charge such
fee to the petitioner, the alleged incapacitated person, or any person
who has appeared in the action; or may allocate the fee, as it deems
just. If the petition is found to be frivolous or not brought in good
faith, the guardian ad litem fee shall be charged to the petitioner.
The court shall not be required to provide for the payment of a fee to
any salaried employee of a public agency.
(11) Upon the presentation of the guardian ad litem report and the
entry of an order either dismissing the petition for appointment of
guardian or limited guardian or appointing a guardian or limited
guardian, the guardian ad litem shall be dismissed and shall have no
further duties or obligations unless otherwise ordered by the court.
If the court orders the guardian ad litem to perform further duties or
obligations, they shall not be performed at county expense.
(12) The guardian ad litem shall appear in person at all hearings
on the petition unless all parties provide a written waiver of the
requirement to appear.
(13) At any hearing the court may consider whether any person who
makes decisions regarding the alleged incapacitated person or estate
has breached a statutory or fiduciary duty.
Sec. 805 RCW 11.88.125 and 1991 c 289 s 8 are each amended to
read as follows:
(1) The person appointed by the court as either guardian or limited
guardian of the person and/or estate of an incapacitated person, shall
file in writing with the court, a notice designating a standby limited
guardian or guardian to serve as limited guardian or guardian at the
death or legal incapacity of the court-appointed guardian or limited
guardian. The notice shall state the name, address, zip code, and
telephone number of the designated standby or limited guardian. Notice
of the guardian's designation of the standby guardian shall be given to
the standby guardian, the incapacitated person and his or her spouse or
domestic partner and adult children, any facility in which the
incapacitated person resides, and any person entitled to special notice
under RCW 11.92.150 or any person entitled to receive pleadings
pursuant to RCW 11.88.095(2)(g). Such standby guardian or limited
guardian shall have all the powers, duties, and obligations of the
regularly appointed guardian or limited guardian and in addition shall,
within a period of thirty days from the death or adjudication of
incapacity of the regularly appointed guardian or limited guardian,
file with the superior court in the county in which the guardianship or
limited guardianship is then being administered, a petition for
appointment of a substitute guardian or limited guardian. Upon the
court's appointment of a new, substitute guardian or limited guardian,
the standby guardian or limited guardian shall make an accounting and
report to be approved by the court, and upon approval of the court, the
standby guardian or limited guardian shall be released from all duties
and obligations arising from or out of the guardianship or limited
guardianship.
(2) Letters of guardianship shall be issued to the standby guardian
or limited guardian upon filing an oath and posting a bond as required
by RCW 11.88.100 as now or hereafter amended. The oath may be filed
prior to the appointed guardian or limited guardian's death. Notice of
such appointment shall be provided to the standby guardian, the
incapacitated person, and any facility in which the incapacitated
person resides. The provisions of RCW 11.88.100 through 11.88.110 as
now or hereafter amended shall apply to standby guardians and limited
guardians.
(3) In addition to the powers of a standby limited guardian or
guardian as noted in subsection (1) of this section, the standby
limited guardian or guardian shall have the authority to provide
timely, informed consent to necessary medical procedures, as authorized
in RCW 11.92.040 as now or hereafter amended, if the guardian or
limited guardian cannot be located within four hours after the need for
such consent arises.
Sec. 806 RCW 11.76.080 and 1997 c 252 s 71 are each amended to
read as follows:
If there be any alleged incapacitated person as defined in RCW
11.88.010 interested in the estate who has no legally appointed
guardian or limited guardian, the court:
(1) At any stage of the proceeding in its discretion and for such
purpose or purposes as it shall indicate, may appoint; and
(2) For hearings held under RCW 11.54.010, 11.68.041, 11.68.100,
and 11.76.050 or for entry of an order adjudicating testacy or
intestacy and heirship when no personal representative is appointed to
administer the estate of the decedent, shall appoint some disinterested
person as guardian ad litem to represent the allegedly incapacitated
person with reference to any petition, proceeding report, or
adjudication of testacy or intestacy without the appointment of a
personal representative to administer the estate of decedent in which
the alleged incapacitated person may have an interest, who, on behalf
of the alleged incapacitated person, may contest the same as any other
person interested might contest it, and who shall be allowed by the
court reasonable compensation for his or her services: PROVIDED,
HOWEVER, That where a surviving spouse or surviving domestic partner is
the sole beneficiary under the terms of a will, the court may grant a
motion by the personal representative to waive the appointment of a
guardian ad litem for a person who is the minor child of the surviving
spouse or surviving domestic partner and the decedent and who is
incapacitated solely for the reason of his or her being under eighteen
years of age.
Sec. 807 RCW 11.92.140 and 1999 c 42 s 616 are each amended to
read as follows:
The court, upon the petition of a guardian of the estate of an
incapacitated person other than the guardian of a minor, and after such
notice as the court directs and other notice to all persons interested
as required by chapter 11.96A RCW, may authorize the guardian to take
any action, or to apply funds not required for the incapacitated
person's own maintenance and support, in any fashion the court approves
as being in keeping with the incapacitated person's wishes so far as
they can be ascertained and as designed to minimize insofar as possible
current or prospective state or federal income and estate taxes, permit
entitlement under otherwise available federal or state medical or other
assistance programs, and to provide for gifts to such charities,
relatives, and friends as would be likely recipients of donations from
the incapacitated person.
The action or application of funds may include but shall not be
limited to the making of gifts, to the conveyance or release of the
incapacitated person's contingent and expectant interests in property
including marital or domestic partnership property rights and any right
of survivorship incident to joint tenancy or tenancy by the entirety,
to the exercise or release of the incapacitated person's powers as
donee of a power of appointment, the making of contracts, the creation
of revocable or irrevocable trusts of property of the incapacitated
person's estate which may extend beyond the incapacitated person's
disability or life, the establishment of custodianships for the benefit
of a minor under chapter 11.114 RCW, the Washington uniform transfers
to minors act, the exercise of options of the incapacitated person to
purchase securities or other property, the exercise of the
incapacitated person's right to elect options and to change
beneficiaries under insurance and annuity policies and the surrendering
of policies for their cash value, the exercise of the incapacitated
person's right to any elective share in the estate of the incapacitated
person's deceased spouse or deceased domestic partner, and the
renunciation or disclaimer of any interest acquired by testate or
intestate succession or by inter vivos transfer.
The guardian in the petition shall briefly outline the action or
application of funds for which approval is sought, the results expected
to be accomplished thereby and the savings expected to accrue. The
proposed action or application of funds may include gifts of the
incapacitated person's personal or real property. Gifts may be for the
benefit of prospective legatees, devisees, or heirs apparent of the
incapacitated person, or may be made to individuals or charities in
which the incapacitated person is believed to have an interest. Gifts
may or may not, in the discretion of the court, be treated as
advancements to donees who would otherwise inherit property from the
incapacitated person under the incapacitated person's will or under the
laws of descent and distribution. The guardian shall also indicate in
the petition that any planned disposition is consistent with the
intentions of the incapacitated person insofar as the intentions can be
ascertained, and if the incapacitated person's intentions cannot be
ascertained, the incapacitated person will be presumed to favor
reduction in the incidence of the various forms of taxation and the
partial distribution of the incapacitated person's estate as provided
in this section. The guardian shall not, however, be required to
include as a beneficiary any person whom there is reason to believe
would be excluded by the incapacitated person. No guardian may be
required to file a petition as provided in this section, and a failure
or refusal to so petition the court does not constitute a breach of the
guardian's fiduciary duties.
Sec. 808 RCW 11.94.090 and 2001 c 203 s 3 are each amended to
read as follows:
(1) A person designated in RCW 11.94.100 may file a petition
requesting that the court:
(a) Determine whether the power of attorney is in effect or has
terminated;
(b) Compel the attorney-in-fact to submit the attorney-in-fact's
accounts or report the attorney-in-fact's acts as attorney-in-fact to
the principal, the spouse or domestic partner of the principal, the
guardian of the person or the estate of the principal, or to any other
person required by the court in its discretion, if the attorney-in-fact
has failed to submit an accounting or report within sixty days after
written request from the person filing the petition, however, a
government agency charged with the protection of vulnerable adults may
file a petition upon the attorney-in-fact's refusal or failure to
submit an accounting upon written request and shall not be required to
wait sixty days;
(c) Ratify past acts or approve proposed acts of the attorney-in-fact;
(d) Order the attorney-in-fact to exercise or refrain from
exercising authority in a power of attorney in a particular manner or
for a particular purpose;
(e) Modify the authority of an attorney-in-fact under a power of
attorney;
(f) Remove the attorney-in-fact on a determination by the court of
both of the following:
(i) The attorney-in-fact has violated or is unfit to perform the
fiduciary duties under the power of attorney; and
(ii) The removal of the attorney-in-fact is in the best interest of
the principal;
(g) Approve the resignation of the attorney-in-fact and approve the
final accountings of the resigning attorney-in-fact if submitted,
subject to any orders the court determines are necessary to protect the
principal's interests;
(h) Confirm the authority of a successor attorney-in-fact to act
under a power of attorney upon removal or resignation of the previous
attorney-in-fact;
(i) Compel a third person to honor the authority of an attorney-in-fact, provided that a third person may not be compelled to honor the
agent's authority if the principal could not compel the third person to
act in the same circumstances;
(j) Order the attorney-in-fact to furnish a bond in an amount the
court determines to be appropriate.
(2) The petition shall contain a statement identifying the
principal's known immediate family members, and any other persons known
to petitioner to be interested in the principal's welfare or the
principal's estate, stating which of said persons have an interest in
the action requested in the petition and explaining the determination
of who is interested in the petition.
Sec. 809 RCW 11.94.100 and 2001 c 203 s 4 are each amended to
read as follows:
(1) A petition may be filed under RCW 11.94.090 by any of the
following persons:
(a) The attorney-in-fact;
(b) The principal;
(c) The spouse or domestic partner of the principal;
(d) The guardian of the estate or person of the principal; or
(e) Any other interested person, as long as the person demonstrates
to the court's satisfaction that the person is interested in the
welfare of the principal and has a good faith belief that the court's
intervention is necessary, and that the principal is incapacitated at
the time of filing the petition or otherwise unable to protect his or
her own interests.
(2) Notwithstanding RCW 11.94.080, the principal may specify in the
power of attorney by name certain persons who shall have no authority
to bring a petition under RCW 11.94.090 with respect to the power of
attorney. This provision is enforceable:
(a) If the person so named is not at the time of filing the
petition the guardian of the principal;
(b) If at the time of signing the power of attorney the principal
was represented by an attorney who advised the principal regarding the
power of attorney and who signed a certificate at the time of execution
of the power of attorney, stating that the attorney has advised the
principal concerning his or her rights, the applicable law, and the
effect and consequences of executing the power of attorney; or
(c) If (a) and (b) of this subsection do not apply, unless the
person so named can establish that the principal was unduly influenced
by another or under mistaken beliefs when excluding the person from the
petition process, or unless the person named is a government agency
charged with protection of vulnerable adults.
Sec. 810 RCW 11.94.140 and 2001 c 203 s 8 are each amended to
read as follows:
(1) The following persons are entitled to notice of hearing on any
petition under RCW 11.94.090:
(a) The principal;
(b) The principal's spouse or domestic partner;
(c) The attorney-in-fact;
(d) The guardian of the estate or person of the principal;
(e) Any other person identified in the petition as being interested
in the action requested in the petition, or identified by the court as
having a right to notice of the hearing. If a person would be excluded
from bringing a petition under RCW 11.94.100(2), then that person is
not entitled to notice of the hearing.
(2) Notwithstanding subsection (1) of this section, if the
whereabouts of the principal are unknown or the principal is otherwise
unavailable to receive notice, the court may waive the requirement of
notice to the principal, and if the principal's spouse is similarly
unavailable to receive notice, the court may waive the requirement of
notice to the principal's spouse.
(3) Notice must be given as required under chapter 11.96A RCW,
except that the parties entitled to notice shall be determined under
this section.
Sec. 901 RCW 11.02.005 and 2007 c 475 s 1 are each amended to
read as follows:
When used in this title, unless otherwise required from the
context:
(1) "Personal representative" includes executor, administrator,
special administrator, and guardian or limited guardian and special
representative.
(2) "Net estate" refers to the real and personal property of a
decedent exclusive of homestead rights, exempt property, the family
allowance and enforceable claims against, and debts of, the deceased or
the estate.
(3) "Representation" refers to a method of determining distribution
in which the takers are in unequal degrees of kinship with respect to
a decedent, and is accomplished as follows: After first determining
who, of those entitled to share in the estate, are in the nearest
degree of kinship, the estate is divided into equal shares, the number
of shares being the sum of the number of persons who survive the
decedent who are in the nearest degree of kinship and the number of
persons in the same degree of kinship who died before the decedent but
who left issue surviving the decedent; each share of a deceased person
in the nearest degree shall be divided among those of the deceased
person's issue who survive the decedent and have no ancestor then
living who is in the line of relationship between them and the
decedent, those more remote in degree taking together the share which
their ancestor would have taken had he or she survived the decedent.
(4) "Issue" means all the lineal descendants of an individual. An
adopted individual is a lineal descendant of each of his or her
adoptive parents and of all individuals with regard to which each
adoptive parent is a lineal descendant. A child conceived prior to the
death of a parent but born after the death of the deceased parent is
considered to be the surviving issue of the deceased parent for
purposes of this title.
(5) "Degree of kinship" means the degree of kinship as computed
according to the rules of the civil law; that is, by counting upward
from the intestate to the nearest common ancestor and then downward to
the relative, the degree of kinship being the sum of these two counts.
(6) "Heirs" denotes those persons, including the surviving spouse
or surviving domestic partner, who are entitled under the statutes of
intestate succession to the real and personal property of a decedent on
the decedent's death intestate.
(7) "Real estate" includes, except as otherwise specifically
provided herein, all lands, tenements, and hereditaments, and all
rights thereto, and all interest therein possessed and claimed in fee
simple, or for the life of a third person.
(8) "Will" means an instrument validly executed as required by RCW
11.12.020.
(9) "Codicil" means a will that modifies or partially revokes an
existing earlier will. A codicil need not refer to or be attached to
the earlier will.
(10) "Guardian" or "limited guardian" means a personal
representative of the person or estate of an incompetent or disabled
person as defined in RCW 11.88.010 and the term may be used in lieu of
"personal representative" wherever required by context.
(11) "Administrator" means a personal representative of the estate
of a decedent and the term may be used in lieu of "personal
representative" wherever required by context.
(12) "Executor" means a personal representative of the estate of a
decedent appointed by will and the term may be used in lieu of
"personal representative" wherever required by context.
(13) "Special administrator" means a personal representative of the
estate of a decedent appointed for limited purposes and the term may be
used in lieu of "personal representative" wherever required by context.
(14) "Trustee" means an original, added, or successor trustee and
includes the state, or any agency thereof, when it is acting as the
trustee of a trust to which chapter 11.98 RCW applies.
(15) "Nonprobate asset" means those rights and interests of a
person having beneficial ownership of an asset that pass on the
person's death under a written instrument or arrangement other than the
person's will. "Nonprobate asset" includes, but is not limited to, a
right or interest passing under a joint tenancy with right of
survivorship, joint bank account with right of survivorship, payable on
death or trust bank account, transfer on death security or security
account, deed or conveyance if possession has been postponed until the
death of the person, trust of which the person is grantor and that
becomes effective or irrevocable only upon the person's death,
community property agreement, individual retirement account or bond, or
note or other contract the payment or performance of which is affected
by the death of the person. "Nonprobate asset" does not include: A
payable-on-death provision of a life insurance policy, annuity, or
other similar contract, or of an employee benefit plan; a right or
interest passing by descent and distribution under chapter 11.04 RCW;
a right or interest if, before death, the person has irrevocably
transferred the right or interest, the person has waived the power to
transfer it or, in the case of contractual arrangement, the person has
waived the unilateral right to rescind or modify the arrangement; or a
right or interest held by the person solely in a fiduciary capacity.
For the definition of "nonprobate asset" relating to revocation of a
provision for a former spouse upon dissolution of marriage or
declaration of invalidity of marriage, RCW 11.07.010(5) applies. For
the definition of "nonprobate asset" relating to revocation of a
provision for a former spouse upon dissolution of marriage or
declaration of invalidity of marriage, see RCW 11.07.010(5). For the
definition of "nonprobate asset" relating to testamentary disposition
of nonprobate assets, see RCW 11.11.010(7).
(16) "Internal Revenue Code" means the United States Internal
Revenue Code of 1986, as amended or renumbered as of January 1, 2001.
(17) References to "section 2033A" of the Internal Revenue Code in
wills, trust agreements, powers of appointment, beneficiary
designations, and other instruments governed by or subject to this
title shall be deemed to refer to the comparable or corresponding
provisions of section 2057 of the Internal Revenue Code, as added by
section 6006(b) of the Internal Revenue Service Restructuring Act of
1998 (H.R. 2676, P.L. 105-206); and references to the section 2033A
"exclusion" shall be deemed to mean the section 2057 deduction.
(18) "Surviving spouse" or "surviving domestic partner" does not
include an individual whose marriage to or state registered domestic
partnership with the decedent has been terminated, dissolved, or
invalidated unless, by virtue of a subsequent marriage or state
registered domestic partnership, he or she is married to or in a
domestic partnership with the decedent at the time of death. A decree
of separation that does not terminate the status of ((husband and
wife)) spouses or domestic partners is not a dissolution or
invalidation for purposes of this subsection.
Words that import the singular number may also be applied to the
plural of persons and things.
Words importing the masculine gender only may be extended to
females also.
Sec. 902 RCW 11.02.070 and 1998 c 292 s 504 are each amended to
read as follows:
Except as provided in RCW 41.04.273 and 11.84.025, upon the death
of a decedent, a one-half share of the community property shall be
confirmed to the surviving spouse or surviving domestic partner, and
the other one-half share shall be subject to testamentary disposition
by the decedent, or shall descend as provided in chapter 11.04 RCW.
The whole of the community property shall be subject to probate
administration for all purposes of this title, including the payment of
obligations and debts of the community, the award in lieu of homestead,
the allowance for family support, and any other matter for which the
community property would be responsible or liable if the decedent were
living.
Sec. 903 RCW 11.02.100 and 1990 c 180 s 7 are each amended to
read as follows:
Shares of record in the name of a ((married person)) spouse or
domestic partner may be transferred by such person, such person's agent
or attorney, without the signature of such person's spouse or domestic
partner. All dividends payable upon any shares of a corporation
standing in the name of a ((married person)) spouse or domestic
partner, shall be paid to such ((married person)) spouse or domestic
partner, such person's agent or attorney, in the same manner as if such
person were unmarried or not in a state registered domestic
partnership, and it shall not be necessary for the other spouse or
domestic partner to join in a receipt therefor; and any proxy or power
given by a ((married person)) spouse or domestic partner, touching any
shares of any corporation standing in such person's name, shall be
valid and binding without the signature of the other spouse or other
domestic partner.
Sec. 904 RCW 11.02.120 and 1990 c 180 s 9 are each amended to
read as follows:
Neither a domestic or foreign corporation or its registrar or
transfer agent shall be liable for transferring or causing to be
transferred on the books of the corporation to or pursuant to the
direction of the surviving spouse ((of a deceased husband or wife)) or
the surviving domestic partner any share or shares or other securities
theretofore issued by the corporation to the deceased or surviving
spouse or both ((of them)), or to the deceased or surviving domestic
partner or both, if the corporation or its registrar or transfer agent
shall be provided with the following:
(1) A copy of an agreement which shall have been entered into
between the spouses or between the domestic partners pursuant to RCW
26.16.120 and certified by the auditor of the county in this state in
whose office the same shall have been recorded;
(2) A certified copy of the death certificate of the deceased
spouse or deceased domestic partner;
(3) An affidavit of the surviving spouse or surviving domestic
partner that:
(a) The shares or other securities constituted community property
of the spouses or the domestic partners at date of death of the
deceased spouse or deceased domestic partner and their disposition is
controlled by the community property agreement;
(b) No proceedings have been instituted to contest or set aside or
cancel the agreement; and that
(c) The claims of creditors have been paid or provided for.
Sec. 905 RCW 11.04.095 and 1965 c 145 s 11.04.095 are each
amended to read as follows:
If a person dies leaving a surviving spouse or surviving domestic
partner and issue by a former spouse or former domestic partner and
leaving a will whereby all or substantially all of the deceased's
property passes to the surviving spouse or surviving domestic partner
or having before death conveyed all or substantially all his or her
property to the surviving spouse or surviving domestic partner, and
afterwards the latter dies without heirs and without disposing of his
or her property by will so that except for this section the same would
all escheat, the issue of the spouse or domestic partner first deceased
who survive the spouse or domestic partner last deceased shall take and
inherit from the spouse or domestic partner last deceased the property
so acquired by will or conveyance or the equivalent thereof in money or
other property; if such issue are all in the same degree of kinship to
the spouse or domestic partner first deceased they shall take equally,
or, if of unequal degree, then those of more remote degree shall take
by representation with respect to such spouse or such domestic partner
first deceased.
Sec. 906 RCW 11.07.010 and 2007 c 475 s 2 and 2007 c 156 s 13 are
each reenacted and amended to read as follows:
(1) This section applies to all nonprobate assets, wherever
situated, held at the time of entry of a decree of dissolution of
marriage or state registered domestic partnership or a declaration of
invalidity or certification of termination of a state registered
domestic partnership.
(2)(a) If a marriage or state registered domestic partnership is
dissolved or invalidated, or a state registered domestic partnership
terminated, a provision made prior to that event that relates to the
payment or transfer at death of the decedent's interest in a nonprobate
asset in favor of or granting an interest or power to the decedent's
former spouse or state registered domestic partner, is revoked. A
provision affected by this section must be interpreted, and the
nonprobate asset affected passes, as if the former spouse or former
state registered domestic partner, failed to survive the decedent,
having died at the time of entry of the decree of dissolution or
declaration of invalidity or termination of state registered domestic
partnership.
(b) This subsection does not apply if and to the extent that:
(i) The instrument governing disposition of the nonprobate asset
expressly provides otherwise;
(ii) The decree of dissolution, declaration of invalidity, or other
court order requires that the decedent maintain a nonprobate asset for
the benefit of a former spouse or former state registered domestic
partner or children of the marriage or domestic partnership, payable on
the decedent's death either outright or in trust, and other nonprobate
assets of the decedent fulfilling such a requirement for the benefit of
the former spouse or former state registered domestic partner or
children of the marriage or domestic partnership do not exist at the
decedent's death;
(iii) A court order requires that the decedent maintain a
nonprobate asset for the benefit of another, payable on the decedent's
death either outright or in a trust, and other nonprobate assets of the
decedent fulfilling such a requirement do not exist at the decedent's
death; or
(iv) If not for this subsection, the decedent could not have
effected the revocation by unilateral action because of the terms of
the decree, declaration, termination of state registered domestic
partnership, or for any other reason, immediately after the entry of
the decree of dissolution, declaration of invalidity, or termination of
state registered domestic partnership.
(3)(a) A payor or other third party in possession or control of a
nonprobate asset at the time of the decedent's death is not liable for
making a payment or transferring an interest in a nonprobate asset to
a decedent's former spouse or state registered domestic partner, whose
interest in the nonprobate asset is revoked under this section, or for
taking another action in reliance on the validity of the instrument
governing disposition of the nonprobate asset, before the payor or
other third party has actual knowledge of the dissolution or other
invalidation of marriage or termination of the state registered
domestic partnership. A payor or other third party is liable for a
payment or transfer made or other action taken after the payor or other
third party has actual knowledge of a revocation under this section.
(b) This section does not require a payor or other third party to
pay or transfer a nonprobate asset to a beneficiary designated in a
governing instrument affected by the dissolution or other invalidation
of marriage or termination of state registered domestic partnership, or
to another person claiming an interest in the nonprobate asset, if the
payor or third party has actual knowledge of the existence of a dispute
between the former spouse or former state registered domestic partner,
and the beneficiaries or other persons concerning rights of ownership
of the nonprobate asset as a result of the application of this section
among the former spouse or former state registered domestic partner,
and the beneficiaries or among other persons, or if the payor or third
party is otherwise uncertain as to who is entitled to the nonprobate
asset under this section. In such a case, the payor or third party
may, without liability, notify in writing all beneficiaries or other
persons claiming an interest in the nonprobate asset of either the
existence of the dispute or its uncertainty as to who is entitled to
payment or transfer of the nonprobate asset. The payor or third party
may also, without liability, refuse to pay or transfer a nonprobate
asset in such a circumstance to a beneficiary or other person claiming
an interest until the time that either:
(i) All beneficiaries and other interested persons claiming an
interest have consented in writing to the payment or transfer; or
(ii) The payment or transfer is authorized or directed by a court
of proper jurisdiction.
(c) Notwithstanding subsections (1) and (2) of this section and (a)
and (b) of this subsection, a payor or other third party having actual
knowledge of the existence of a dispute between beneficiaries or other
persons concerning rights to a nonprobate asset as a result of the
application of this section may condition the payment or transfer of
the nonprobate asset on execution, in a form and with security
acceptable to the payor or other third party, of a bond in an amount
that is double the fair market value of the nonprobate asset at the
time of the decedent's death or the amount of an adverse claim,
whichever is the lesser, or of a similar instrument to provide security
to the payor or other third party, indemnifying the payor or other
third party for any liability, loss, damage, costs, and expenses for
and on account of payment or transfer of the nonprobate asset.
(d) As used in this subsection, "actual knowledge" means, for a
payor or other third party in possession or control of the nonprobate
asset at or following the decedent's death, written notice to the payor
or other third party, or to an officer of a payor or third party in the
course of his or her employment, received after the decedent's death
and within a time that is sufficient to afford the payor or third party
a reasonable opportunity to act upon the knowledge. The notice must
identify the nonprobate asset with reasonable specificity. The notice
also must be sufficient to inform the payor or other third party of the
revocation of the provisions in favor of the decedent's spouse or state
registered domestic partner, by reason of the dissolution or
invalidation of marriage or termination of state registered domestic
partnership, or to inform the payor or third party of a dispute
concerning rights to a nonprobate asset as a result of the application
of this section. Receipt of the notice for a period of more than
thirty days is presumed to be received within a time that is sufficient
to afford the payor or third party a reasonable opportunity to act upon
the knowledge, but receipt of the notice for a period of less than five
business days is presumed not to be a sufficient time for these
purposes. These presumptions may be rebutted only by clear and
convincing evidence to the contrary.
(4)(a) A person who purchases a nonprobate asset from a former
spouse, former state registered domestic partner, or other person, for
value and without actual knowledge, or who receives from a former
spouse, former state registered domestic partner, or other person
payment or transfer of a nonprobate asset without actual knowledge and
in partial or full satisfaction of a legally enforceable obligation, is
neither obligated under this section to return the payment, property,
or benefit nor is liable under this section for the amount of the
payment or the value of the nonprobate asset. However, a former
spouse, former state registered domestic partner, or other person who,
with actual knowledge, not for value, or not in satisfaction of a
legally enforceable obligation, receives payment or transfer of a
nonprobate asset to which that person is not entitled under this
section is obligated to return the payment or nonprobate asset, or is
personally liable for the amount of the payment or value of the
nonprobate asset, to the person who is entitled to it under this
section.
(b) As used in this subsection, "actual knowledge" means, for a
person described in (a) of this subsection who purchases or receives a
nonprobate asset from a former spouse, former state registered domestic
partner, or other person, personal knowledge or possession of documents
relating to the revocation upon dissolution or invalidation of marriage
of provisions relating to the payment or transfer at the decedent's
death of the nonprobate asset, received within a time after the
decedent's death and before the purchase or receipt that is sufficient
to afford the person purchasing or receiving the nonprobate asset
reasonable opportunity to act upon the knowledge. Receipt of the
personal knowledge or possession of the documents for a period of more
than thirty days is presumed to be received within a time that is
sufficient to afford the payor or third party a reasonable opportunity
to act upon the knowledge, but receipt of the notice for a period of
less than five business days is presumed not to be a sufficient time
for these purposes. These presumptions may be rebutted only by clear
and convincing evidence to the contrary.
(5) As used in this section, "nonprobate asset" means those rights
and interests of a person having beneficial ownership of an asset that
pass on the person's death under only the following written instruments
or arrangements other than the decedent's will:
(a) A payable-on-death provision of a life insurance policy,
employee benefit plan, annuity or similar contract, or individual
retirement account, unless provided otherwise by controlling federal
law;
(b) A payable-on-death, trust, or joint with right of survivorship
bank account;
(c) A trust of which the person is a grantor and that becomes
effective or irrevocable only upon the person's death;
(d) Transfer on death beneficiary designations of a transfer on
death or pay on death security, or joint tenancy or joint tenancy with
right of survivorship designations of a security, if such designations
are authorized under Washington law;
(e) A transfer on death, pay on death, joint tenancy, or joint
tenancy with right of survivorship brokerage account;
(f) Unless otherwise specifically provided therein, a contract
wherein payment or performance under that contract is affected by the
death of the person; or
(g) Unless otherwise specifically provided therein, any other
written instrument of transfer, within the meaning of RCW 11.02.091(3),
containing a provision for the nonprobate transfer of an asset at
death.
For the general definition in this title of "nonprobate asset," see
RCW 11.02.005(15) and for the definition of "nonprobate asset" relating
to testamentary disposition of nonprobate assets, see RCW 11.11.010(7).
For the purposes of this chapter, a "bank account" includes an account
into or from which cash deposits and withdrawals can be made, and
includes demand deposit accounts, time deposit accounts, money market
accounts, or certificates of deposit, maintained at a bank, savings and
loan association, credit union, brokerage house, or similar financial
institution.
(6) This section is remedial in nature and applies as of July 25,
1993, to decrees of dissolution and declarations of invalidity entered
after July 24, 1993, and this section applies as of January 1, 1995, to
decrees of dissolution and declarations of invalidity entered before
July 25, 1993.
Sec. 907 RCW 11.08.300 and 1990 c 225 s 3 are each amended to
read as follows:
Escheat property may be transferred to the department of revenue
under the provisions of RCW 11.62.005 through 11.62.020. The
department of revenue shall furnish proof of death and an affidavit
made by the department which meets the requirements of RCW 11.62.010 to
any person who is indebted to or has possession of any personal
property belonging to the decedent or to the decedent and his or her
surviving spouse or surviving domestic partner as a community, which
debt or personal property is an asset which is subject to probate.
Upon receipt of such proof of death and affidavit, the person shall pay
the indebtedness or deliver the personal property, or as much of either
as is claimed, to the department of revenue pursuant to RCW 11.62.010.
The department of revenue shall file a copy of its affidavit made
pursuant to chapter 11.62 RCW with the clerk of the court where any
probate administration of the decedent has been commenced, or, if no
probate administration has been commenced, then with the clerk of the
court of any county provided by law as a place for probate
administration of the estate of such person. The affidavit shall be
indexed under the name of the decedent in the probate index upon
payment of a fee of two dollars. Any claimant to escheated funds shall
have seven years from the filing of the affidavit by the department of
revenue within which to file the claim. The claim shall be filed with
the clerk of the court where the affidavit of the department of revenue
was filed, and a copy served upon the department of revenue, together
with twenty days notice of a hearing to be held thereon, and the
provisions of RCW 11.08.250 through 11.08.280 shall apply.
Sec. 908 RCW 11.10.010 and 1994 c 221 s 5 are each amended to
read as follows:
(1) Except as provided in subsection (2) of this section, property
of a decedent abates, without preference as between real and personal
property, in the following order:
(a) Intestate property;
(b) Residuary gifts;
(c) General gifts;
(d) Specific gifts.
For purposes of abatement a demonstrative gift, defined as a
general gift charged on any specific property or fund, is deemed a
specific gift to the extent of the value of the property or fund on
which it is charged, and a general gift to the extent of a failure or
insufficiency of that property or fund. Abatement within each
classification is in proportion to the amounts of property each of the
beneficiaries would have received if full distribution of the property
had been made in accordance with the terms of the will.
(2) If the will expresses an order of abatement, or if the
testamentary plan or the express or implied purpose of the devise would
be defeated by the order of abatement stated in subsection (1) of this
section, a gift abates as may be found necessary to give effect to the
intention of the testator.
(3) If the subject of a preferred gift is sold, diminished, or
exhausted incident to administration, not including satisfaction of
debts or liabilities according to their community or separate status
under RCW 11.10.030, abatement must be achieved by appropriate
adjustments in, or contribution from, other interests in the remaining
assets.
(4) To the extent that the whole of the community property is
subject to abatement, the shares of the decedent and of the surviving
spouse or surviving domestic partner in the community property abate
equally.
(5) If required under RCW 11.10.040, nonprobate assets must abate
with those disposed of under the will and passing by intestacy.
Sec. 909 RCW 11.11.010 and 1998 c 292 s 104 are each amended to
read as follows:
The definitions in this section apply throughout this chapter
unless the context clearly requires otherwise.
(1)(a) "Actual knowledge" means:
(i) For a financial institution, whether acting as personal
representative or otherwise, or other third party in possession or
control of a nonprobate asset, receipt of written notice that: (A)
Complies with RCW 11.11.050; (B) pertains to the testamentary
disposition or ownership of a nonprobate asset in its possession or
control; and (C) is received by the financial institution or third
party after the death of the owner in a time sufficient to afford the
financial institution or third party a reasonable opportunity to act
upon the knowledge; and
(ii) For a personal representative that is not a financial
institution, personal knowledge or possession of documents relating to
the testamentary disposition or ownership of a nonprobate asset of the
owner sufficient to afford the personal representative reasonable
opportunity to act upon the knowledge, including reasonable opportunity
for the personal representative to provide the written notice under RCW
11.11.050.
(b) For the purposes of (a) of this subsection, notice of more than
thirty days is presumed to be notice that is sufficient to afford the
party a reasonable opportunity to act upon the knowledge, but notice of
less than five business days is presumed not to be a sufficient notice
for these purposes. These presumptions may be rebutted only by clear
and convincing evidence to the contrary.
(2) "Beneficiary" means the person designated to receive a
nonprobate asset upon the death of the owner by means other than the
owner's will.
(3) "Broker" means a person defined as a broker or dealer under the
federal securities laws.
(4) "Date of will" means, as to any nonprobate asset, the date of
signature of the will or codicil that refers to the asset and disposes
of it.
(5) "Designate" means a written means by which the owner selects a
beneficiary, including but not limited to instruments under contractual
arrangements and registration of accounts, and "designation" means the
selection.
(6) "Financial institution" means: A bank, trust company, mutual
savings bank, savings and loan association, credit union, broker, or
issuer of stock or its transfer agent.
(7)(a) "Nonprobate asset" means a nonprobate asset within the
meaning of RCW 11.02.005, but excluding the following:
(i) A right or interest in real property passing under a joint
tenancy with right of survivorship;
(ii) A deed or conveyance for which possession has been postponed
until the death of the owner;
(iii) A right or interest passing under a community property
agreement; and
(iv) An individual retirement account or bond.
(b) For the definition of "nonprobate asset" relating to revocation
of a provision for a former spouse or former domestic partner upon
dissolution of marriage or state registered domestic partnership or
declaration of invalidity of marriage or state registered domestic
partnership, see RCW 11.07.010(5).
(8) "Owner" means a person who, during life, has beneficial
ownership of the nonprobate asset.
(9) "Request" means a request by the beneficiary for transfer of a
nonprobate asset after the death of the owner, if it complies with all
conditions of the arrangement, including reasonable special
requirements concerning necessary signatures and regulations of the
financial institution or other third party, or by the personal
representative of the owner's estate or the testamentary beneficiary,
if it complies with the owner's will and any additional conditions of
the financial institution or third party for such transfer.
(10) "Testamentary beneficiary" means a person named under the
owner's will to receive a nonprobate asset under this chapter,
including but not limited to the trustee of a testamentary trust.
(11) "Third party" means a person, including a financial
institution, having possession of or control over a nonprobate asset at
the death of the owner, including the trustee of a revocable living
trust and surviving joint tenant or tenants.
Sec. 910 RCW 11.12.051 and 1994 c 221 s 11 are each amended to
read as follows:
(1) If, after making a will, the testator's marriage or domestic
partnership is dissolved ((or)), invalidated, or terminated, all
provisions in the will in favor of or granting any interest or power to
the testator's former spouse or former domestic partner are revoked,
unless the will expressly provides otherwise. Provisions affected by
this section must be interpreted, and property affected passes, as if
the former spouse or former domestic partner failed to survive the
testator, having died at the time of entry of the decree of dissolution
or declaration of invalidity. Provisions revoked by this section are
revived by the testator's remarriage to the former spouse or
reregistration of the domestic partnership with the former domestic
partner. Revocation of certain nonprobate transfers is provided under
RCW 11.07.010.
(2) This section is remedial in nature and applies to decrees of
dissolution and declarations of invalidity entered before, on, or after
January 1, 1995.
Sec. 911 RCW 11.12.095 and 1994 c 221 s 10 are each amended to
read as follows:
(1) If a will fails to name or provide for a spouse or domestic
partner of the decedent whom the decedent marries or enters into a
domestic partnership after the will's execution and who survives the
decedent, referred to in this section as an "omitted spouse" or
"omitted domestic partner," the spouse or domestic partner must receive
a portion of the decedent's estate as provided in subsection (3) of
this section, unless it appears either from the will or from other
clear and convincing evidence that the failure was intentional.
(2) In determining whether an omitted spouse or omitted domestic
partner has been named or provided for, the following rules apply:
(a) A spouse or domestic partner identified in a will by name is
considered named whether identified as a spouse or domestic partner or
in any other manner.
(b) A reference in a will to the decedent's future spouse or
spouses or future domestic partner or partners, or words of similar
import, constitutes a naming of a spouse or domestic partner whom the
decedent later marries or with whom the decedent enters into a domestic
partnership. A reference to another class such as the decedent's heirs
or family does not constitute a naming of a spouse or domestic partner
who falls within the class.
(c) A nominal interest in an estate does not constitute a provision
for a spouse or domestic partner receiving the interest.
(3) The omitted spouse or omitted domestic partner must receive an
amount equal in value to that which the spouse or domestic partner
would have received under RCW 11.04.015 if the decedent had died
intestate, unless the court determines on the basis of clear and
convincing evidence that a smaller share, including no share at all, is
more in keeping with the decedent's intent. In making the
determination the court may consider, among other things, the spouse's
or domestic partner's property interests under applicable community
property or quasi-community property laws, the various elements of the
decedent's dispositive scheme, and a marriage settlement or settlement
in a domestic partnership or other provision and provisions for the
omitted spouse or omitted domestic partner outside the decedent's will.
(4) In satisfying a share provided by this section, the bequests
made by the will abate as provided in chapter 11.10
Sec. 912 RCW 11.12.180 and 1994 c 221 s 17 are each amended to
read as follows:
The Rule in Shelley's Case is abolished as a rule of law and as a
rule of construction. If an applicable statute or a governing
instrument calls for a future distribution to or creates a future
interest in a designated individual's "heirs," "heirs at law," "next of
kin," "relatives," or "family," or language of similar import, the
property passes to those persons, including the state under chapter
11.08 RCW, that would succeed to the designated individual's estate
under chapter 11.04 RCW. The property must pass to those persons as if
the designated individual had died when the distribution or transfer of
the future interest was to take effect in possession or enjoyment. For
purposes of this section and RCW 11.12.185, the designated individual's
surviving spouse or surviving domestic partner is deemed to be an heir,
regardless of whether the surviving spouse or surviving domestic
partner has remarried or entered into a subsequent domestic
partnership.
Sec. 913 RCW 11.28.030 and 1965 c 145 s 11.28.030 are each
amended to read as follows:
A surviving spouse or surviving domestic partner shall be entitled
to administer upon the community property, notwithstanding any
provisions of the will to the contrary, if the court find such spouse
or such domestic partner to be otherwise qualified; but if such
surviving spouse or surviving domestic partner do not make application
for such appointment within forty days immediately following the death
of the deceased spouse or deceased domestic partner, he or she shall be
considered as having waived his or her right to administer upon such
community property. If any person, other than the surviving spouse or
surviving domestic partner, make application for letters testamentary
on such property, prior to the expiration of such forty days, then the
court, before making any such appointment, shall require notice of such
application to be given the said surviving spouse or surviving domestic
partner, for such time and in such manner as the court may determine,
unless such applicant show to the satisfaction of the court that there
is no surviving spouse or surviving domestic partner or that he or she
has in writing waived the right to administer upon such community
property.
Sec. 914 RCW 11.28.131 and 1974 ex.s. c 117 s 44 are each amended
to read as follows:
When a petition for general letters of administration or for
letters of administration with the will annexed shall be filed, the
matter may (([be])) be heard forthwith, appointment made and letters of
administration issued: PROVIDED, That if there be a surviving spouse
or surviving domestic partner and a petition is presented by anyone
other than the surviving spouse or surviving domestic partner, or any
person designated by the surviving spouse or surviving domestic partner
to serve as personal representative on his or her behalf, notice to the
surviving spouse or surviving domestic partner shall be given of the
time and place of such hearing at least ten days before the hearing,
unless the surviving spouse or surviving domestic partner shall waive
notice of the hearing in writing filed in the cause.
Sec. 915 RCW 11.28.185 and 1977 ex.s. c 234 s 5 are each amended
to read as follows:
When the terms of the decedent's will manifest an intent that the
personal representative appointed to administer the estate shall not be
required to furnish bond or other security, or when the personal
representative is the surviving spouse or surviving domestic partner of
the decedent and it appears to the court that the entire estate, after
provision for expenses and claims of creditors, will be distributable
to such spouse or surviving domestic partner, then such personal
representative shall not be required to give bond or other security as
a condition of appointment. In all cases where a bank or trust company
authorized to act as personal representative is appointed as personal
representative, no bond shall be required. In all other cases, unless
waived by the court, the personal representative shall give such bond
or other security, in such amount and with such surety or sureties, as
the court may direct.
Every person required to furnish bond must, before receiving
letters testamentary or of administration, execute a bond to the state
of Washington conditioned that the personal representative shall
faithfully execute the duty of the trust according to law.
The court may at any time after appointment of the personal
representative require said personal representative to give a bond or
additional bond, the same to be conditioned and to be approved as
provided in this section; or the court may allow a reduction of the
bond upon a proper showing.
In lieu of bond, the court may in its discretion, substitute other
security or financial arrangements, such as provided under RCW
11.88.105, or as the court may deem adequate to protect the assets of
the estate.
Sec. 916 RCW 11.54.010 and 1997 c 252 s 48 are each amended to
read as follows:
(1) Subject to RCW 11.54.030, the surviving spouse or surviving
domestic partner of a decedent may petition the court for an award from
the property of the decedent. If the decedent is survived by children
of the decedent who are not also the children of the surviving spouse
or surviving domestic partner, on petition of such a child the court
may divide the award between the surviving spouse or surviving domestic
partner and all or any of such children as it deems appropriate. If
there is not a surviving spouse or surviving domestic partner, the
minor children of the decedent may petition for an award.
(2) The award may be made from either the community property or
separate property of the decedent. Unless otherwise ordered by the
court, the probate and nonprobate assets of the decedent abate in
accordance with chapter 11.10 RCW in satisfaction of the award.
(3) The award may be made whether or not probate proceedings have
been commenced in the state of Washington. The court may not make this
award unless the petition for the award is filed before the earliest
of:
(a) Eighteen months from the date of the decedent's death if within
twelve months of the decedent's death either:
(i) A personal representative has been appointed; or
(ii) A notice agent has filed a declaration and oath as required in
RCW 11.42.010(3)(a)(ii); or
(b) The termination of any probate proceeding for the decedent's
estate that has been commenced in the state of Washington; or
(c) Six years from the date of the death of the decedent.
Sec. 917 RCW 11.54.020 and 1997 c 252 s 49 are each amended to
read as follows:
The amount of the basic award shall be the amount specified in RCW
6.13.030(2) with regard to lands. If an award is divided between a
surviving spouse or surviving domestic partner and the decedent's
children who are not the children of the surviving spouse or surviving
domestic partner, the aggregate amount awarded to all the claimants
under this section shall be the amount specified in RCW 6.13.030(2)
with respect to lands. The amount of the basic award may be increased
or decreased in accordance with RCW 11.54.040 and 11.54.050.
Sec. 918 RCW 11.54.030 and 1997 c 252 s 50 are each amended to
read as follows:
(1) The court may not make an award unless the court finds that the
funeral expenses, expenses of last sickness, and expenses of
administration have been paid or provided for.
(2) The court may not make an award to a surviving spouse or
surviving domestic partner or child who has participated, either as a
principal or as an accessory before the fact, in the willful and
unlawful killing of the decedent.
Sec. 919 RCW 11.54.040 and 1997 c 252 s 51 are each amended to
read as follows:
(1) If it is demonstrated to the satisfaction of the court with
clear, cogent, and convincing evidence that a claimant's present and
reasonably anticipated future needs during the pendency of any probate
proceedings in the state of Washington with respect to basic
maintenance and support will not otherwise be provided for from other
resources, and that the award would not be inconsistent with the
decedent's intentions, the amount of the award may be increased in an
amount the court determines to be appropriate.
(2) In determining the needs of the claimant, the court shall
consider, without limitation, the resources available to the claimant
and the claimant's dependents, and the resources reasonably expected to
be available to the claimant and the claimant's dependents during the
pendency of the probate, including income related to present or future
employment and benefits flowing from the decedent's probate and
nonprobate estate.
(3) In determining the intentions of the decedent, the court shall
consider, without limitation:
(a) Provisions made for the claimant by the decedent under the
terms of the decedent's will or otherwise;
(b) Provisions made for third parties or other entities under the
decedent's will or otherwise that would be affected by an increased
award;
(c) If the claimant is the surviving spouse or surviving domestic
partner, the duration and status of the marriage or the state
registered domestic partnership of the decedent to the claimant at the
time of the decedent's death;
(d) The effect of any award on the availability of any other
resources or benefits to the claimant;
(e) The size and nature of the decedent's estate; and
(f) Oral or written statements made by the decedent that are
otherwise admissible as evidence.
The fact that the decedent has named beneficiaries other than the
claimant as recipients of the decedent's estate is not of itself
adequate to evidence such an intent as would prevent the award of an
amount in excess of that provided for in RCW 6.13.030(2) with respect
to lands.
(4)(a) A petition for an increased award may only be made if a
petition for an award has been granted under RCW 11.54.010. The
request for an increased award may be made in conjunction with the
petition for an award under RCW 11.54.010.
(b) Subject to (a) of this subsection, a request for an increased
award may be made at any time during the pendency of the probate
proceedings. A request to modify an increased award may also be made
at any time during the pendency of the probate proceedings by a person
having an interest in the decedent's estate that will be directly
affected by the requested modification.
Sec. 920 RCW 11.54.050 and 1997 c 252 s 52 are each amended to
read as follows:
(1) The court may decrease the amount of the award below the amount
provided in RCW 11.54.020 in the exercise of its discretion if the
recipient is entitled to receive probate or nonprobate property,
including insurance, by reason of the death of the decedent. In such
a case the award must be decreased by no more than the value of such
other property as is received by reason of the death of the decedent.
The court shall consider the factors presented in RCW 11.54.040(2) in
determining the propriety of the award and the proper amount of the
award, if any.
(2) An award to a surviving spouse or surviving domestic partner is
also discretionary and the amount otherwise allowable may be reduced
if: (a) The decedent is survived by children who are not the children
of the surviving spouse or surviving domestic partner and the award
would decrease amounts otherwise distributable to such children; or (b)
the award would have the effect of reducing amounts otherwise
distributable to any of the decedent's minor children. In either case
the court shall consider the factors presented in RCW 11.54.040 (2) and
(3) and whether the needs of the minor children with respect to basic
maintenance and support are and will be adequately provided for, both
during and after the pendency of any probate proceedings if such
proceedings are pending, considering support from any source, including
support from the surviving spouse or surviving domestic partner.
Sec. 921 RCW 11.54.070 and 1998 c 292 s 201 are each amended to
read as follows:
(1) Except as provided in RCW 11.54.060(2), property awarded and
cash paid under this chapter is immune from all debts, including
judgments and judgment liens, of the decedent and of the surviving
spouse or surviving domestic partner existing at the time of death.
(2) Both the decedent's and the surviving spouse's or surviving
domestic partner's interests in any community property awarded to the
spouse or domestic partner under this chapter are immune from the
claims of creditors.
Sec. 922 RCW 11.62.005 and 2006 c 360 s 15 are each amended to
read as follows:
As used in this chapter, the following terms shall have the
meanings indicated.
(1) "Personal property" shall include any tangible personal
property, any instrument evidencing a debt, obligation, stock, chose in
action, license or ownership, any debt or any other intangible
property.
(2)(a) "Successor" and "successors" shall mean (subject to
subsection (2)(b) of this section):
(i) That person or those persons who are entitled to the claimed
property pursuant to the terms and provisions of the last will and
testament of the decedent or by virtue of the laws of intestate
succession contained in this title; and/
(ii) The surviving spouse or surviving domestic partner of the
decedent to the extent that the surviving spouse or surviving domestic
partner is entitled to the property claimed as his or her undivided
one-half interest in the community property of said spouse or said
domestic partner and the decedent; and/
(iii) The department of social and health services, to the extent
of funds expended or paid, in the case of claims provided under RCW
43.20B.080; and/
(iv) This state, in the case of escheat property.
(b) Any person claiming to be a successor solely by reason of being
a creditor of the decedent or of the decedent's estate, except for the
state as set forth in (a)(iii) and (iv) of this subsection, shall be
excluded from the definition of "successor".
(3) "Person" shall mean any individual or organization,
specifically including but not limited to a bank, credit union,
brokerage firm or stock transfer agent, corporation, government or
governmental subdivision or agency, business trust, estate, trust,
partnership or association, two or more persons having a joint or
common interest, or any other legal or commercial entity.
Sec. 923 RCW 11.62.010 and 2006 c 360 s 16 are each amended to
read as follows:
(1) At any time after forty days from the date of a decedent's
death, any person who is indebted to or who has possession of any
personal property belonging to the decedent or to the decedent and his
or her surviving spouse or surviving domestic partner as a community,
which debt or personal property is an asset which is subject to
probate, shall pay such indebtedness or deliver such personal property,
or so much of either as is claimed, to a person claiming to be a
successor of the decedent upon receipt of proof of death and of an
affidavit made by said person which meets the requirements of
subsection (2) of this section.
(2) An affidavit which is to be made pursuant to this section shall
state:
(a) The claiming successor's name and address, and that the
claiming successor is a "successor" as defined in RCW 11.62.005;
(b) That the decedent was a resident of the state of Washington on
the date of his or her death;
(c) That the value of the decedent's entire estate subject to
probate, not including the surviving spouse's or surviving domestic
partner's community property interest in any assets which are subject
to probate in the decedent's estate, wherever located, less liens and
encumbrances, does not exceed one hundred thousand dollars;
(d) That forty days have elapsed since the death of the decedent;
(e) That no application or petition for the appointment of a
personal representative is pending or has been granted in any
jurisdiction;
(f) That all debts of the decedent including funeral and burial
expenses have been paid or provided for;
(g) A description of the personal property and the portion thereof
claimed, together with a statement that such personal property is
subject to probate;
(h) That the claiming successor has given written notice, either by
personal service or by mail, identifying his or her claim, and
describing the property claimed, to all other successors of the
decedent, and that at least ten days have elapsed since the service or
mailing of such notice; and
(i) That the claiming successor is either personally entitled to
full payment or delivery of the property claimed or is entitled to full
payment or delivery thereof on the behalf and with the written
authority of all other successors who have an interest therein.
(3) A transfer agent of any security shall change the registered
ownership of the security claimed from the decedent to the person
claiming to be the successor with respect to such security upon the
presentation of proof of death and of an affidavit made by such person
which meets the requirements of subsection (2) of this section. Any
governmental agency required to issue certificates of ownership or of
license registration to personal property shall issue a new certificate
of ownership or of license registration to a person claiming to be a
successor of the decedent upon receipt of proof of death and of an
affidavit made by such person which meets the requirements of
subsection (2) of this section.
(4) No release from any Washington state or local taxing authority
may be required before any assets or debts are paid or delivered to a
successor of a decedent as required under this section.
(5) A copy of the affidavit, including the decedent's social
security number, shall be mailed to the state of Washington, department
of social and health services, office of financial recovery.
Sec. 924 RCW 11.62.030 and 1980 c 41 s 10 are each amended to
read as follows:
On the death of any member of any credit union organized under
chapter 31.12 RCW or federal law, such credit union may pay to the
surviving spouse or surviving domestic partner the moneys of such
member on deposit to the credit of said deceased member, including
moneys deposited as shares in said credit union, in cases where the
amount of deposit does not exceed the sum of one thousand dollars, upon
receipt of an affidavit from the surviving spouse or surviving domestic
partner to the effect that the member died and no executor or
administrator has been appointed for the member's estate, and the
member had on deposit in said credit union money not exceeding the sum
of one thousand dollars. The payment of such deposit made in good
faith to the spouse or the domestic partner making the affidavit shall
be a full acquittance and release of the credit union for the amount of
the deposit so paid.
No probate proceeding shall be necessary to establish the right of
said surviving spouse to withdraw said deposits upon the filing of said
affidavit: PROVIDED, That whenever a personal representative is
appointed in an estate where a withdrawal of deposits has been had in
compliance with this section, the spouse so withdrawing said deposits
shall account for the same to the personal representative. The credit
union may also pay out the moneys on deposit to the credit of the
deceased upon presentation of an affidavit as provided in RCW
11.62.010, as now or hereafter amended.
Sec. 925 RCW 11.68.011 and 1997 c 252 s 59 are each amended to
read as follows:
(1) A personal representative may petition the court for
nonintervention powers, whether the decedent died testate or intestate.
(2) Unless the decedent has specified in the decedent's will, if
any, that the court not grant nonintervention powers to the personal
representative, the court shall grant nonintervention powers to a
personal representative who petitions for the powers if the court
determines that the decedent's estate is solvent, taking into account
probate and nonprobate assets, and that:
(a) The petitioning personal representative was named in the
decedent's probated will as the personal representative;
(b) The decedent died intestate, the petitioning personal
representative is the decedent's surviving spouse or surviving domestic
partner, the decedent's estate is composed of community property only,
and the decedent had no issue: (i) Who is living or in gestation on
the date of the petition; (ii) whose identity is reasonably
ascertainable on the date of the petition; and (iii) who is not also
the issue of the petitioning spouse or petitioning domestic partner; or
(c) The personal representative was not a creditor of the decedent
at the time of the decedent's death and the administration and
settlement of the decedent's will or estate with nonintervention powers
would be in the best interests of the decedent's beneficiaries and
creditors. However, the administration and settlement of the
decedent's will or estate with nonintervention powers will be presumed
to be in the beneficiaries' and creditors' best interest until a person
entitled to notice under RCW 11.68.041 rebuts that presumption by
coming forward with evidence that the grant of nonintervention powers
would not be in the beneficiaries' or creditors' best interests.
(3) The court may base its findings of facts necessary for the
grant of nonintervention powers on: (a) Statements of witnesses
appearing before the court; (b) representations contained in a verified
petition for nonintervention powers, in an inventory made and returned
upon oath into the court, or in an affidavit filed with the court; or
(c) other proof submitted to the court.
Sec. 926 RCW 11.80.130 and 1972 ex.s. c 83 s 3 are each amended
to read as follows:
(1) If the spouse or domestic partner of any absentee owner, or his
or her next of kin, if said absentee has no spouse or domestic partner,
shall wish to sell or transfer any property of the absentee which has
a gross value of less than five thousand dollars, or shall require the
consent of the absentee in any matter regarding the absentee's
children, or any other matter in which the gross value of the subject
matter is less than five thousand dollars, such spouse or such domestic
partner or next of kin may apply to the superior court for an order
authorizing said sale, transfer, or consent without opening a full
trustee proceeding as provided in this chapter. The applicant may make
the application without the assistance of an attorney. Said
application shall be made by petition on the following form, which form
shall be made readily available to the applicant by the clerk of the
superior court.
Sec. 927 RCW 11.96A.030 and 2006 c 360 s 10 are each amended to
read as follows:
The definitions in this section apply throughout this chapter
unless the context clearly requires otherwise.
(1) "Matter" includes any issue, question, or dispute involving:
(a) The determination of any class of creditors, devisees,
legatees, heirs, next of kin, or other persons interested in an estate,
trust, nonprobate asset, or with respect to any other asset or property
interest passing at death;
(b) The direction of a personal representative or trustee to do or
to abstain from doing any act in a fiduciary capacity;
(c) The determination of any question arising in the administration
of an estate or trust, or with respect to any nonprobate asset, or with
respect to any other asset or property interest passing at death, that
may include, without limitation, questions relating to: (i) The
construction of wills, trusts, community property agreements, and other
writings; (ii) a change of personal representative or trustee; (iii) a
change of the situs of a trust; (iv) an accounting from a personal
representative or trustee; or (v) the determination of fees for a
personal representative or trustee;
(d) The grant to a personal representative or trustee of any
necessary or desirable power not otherwise granted in the governing
instrument or given by law;
(e) The amendment, reformation, or conformation of a will or a
trust instrument to comply with statutes and regulations of the United
States internal revenue service in order to achieve qualification for
deductions, elections, and other tax requirements, including the
qualification of any gift thereunder for the benefit of a surviving
spouse who is not a citizen of the United States for the estate tax
marital deduction permitted by federal law, including the addition of
mandatory governing instrument requirements for a qualified domestic
trust under section 2056A of the internal revenue code, the
qualification of any gift thereunder as a qualified conservation
easement as permitted by federal law, or the qualification of any gift
for the charitable estate tax deduction permitted by federal law,
including the addition of mandatory governing instrument requirements
for a charitable remainder trust; and
(f) With respect to any nonprobate asset, or with respect to any
other asset or property interest passing at death, including joint
tenancy property, property subject to a community property agreement,
or assets subject to a pay on death or transfer on death designation:
(i) The ascertaining of any class of creditors or others for
purposes of chapter 11.18 or 11.42 RCW;
(ii) The ordering of a qualified person, the notice agent, or
resident agent, as those terms are defined in chapter 11.42 RCW, or any
combination of them, to do or abstain from doing any particular act
with respect to a nonprobate asset;
(iii) The ordering of a custodian of any of the decedent's records
relating to a nonprobate asset to do or abstain from doing any
particular act with respect to those records;
(iv) The determination of any question arising in the
administration under chapter 11.18 or 11.42 RCW of a nonprobate asset;
(v) The determination of any questions relating to the abatement,
rights of creditors, or other matter relating to the administration,
settlement, or final disposition of a nonprobate asset under this
title;
(vi) The resolution of any matter referencing this chapter,
including a determination of any questions relating to the ownership or
distribution of an individual retirement account on the death of the
spouse of the account holder as contemplated by RCW 6.15.020(6);
(vii) The resolution of any other matter that could affect the
nonprobate asset.
(2) "Notice agent" has the meanings given in RCW 11.42.010.
(3) "Nonprobate assets" has the meaning given in RCW 11.02.005.
(4) "Party" or "parties" means each of the following persons who
has an interest in the subject of the particular proceeding and whose
name and address are known to, or are reasonably ascertainable by, the
petitioner:
(a) The trustor if living;
(b) The trustee;
(c) The personal representative;
(d) An heir;
(e) A beneficiary, including devisees, legatees, and trust
beneficiaries;
(f) The surviving spouse or surviving domestic partner of a
decedent with respect to his or her interest in the decedent's
property;
(g) A guardian ad litem;
(h) A creditor;
(i) Any other person who has an interest in the subject of the
particular proceeding;
(j) The attorney general if required under RCW 11.110.120;
(k) Any duly appointed and acting legal representative of a party
such as a guardian, special representative, or attorney-in-fact;
(l) Where applicable, the virtual representative of any person
described in this subsection the giving of notice to whom would meet
notice requirements as provided in RCW 11.96A.120;
(m) Any notice agent, resident agent, or a qualified person, as
those terms are defined in chapter 11.42 RCW; and
(n) The owner or the personal representative of the estate of the
deceased owner of the nonprobate asset that is the subject of the
particular proceeding, if the subject of the particular proceeding
relates to the beneficiary's liability to a decedent's estate or
creditors under RCW 11.18.200.
(5) "Persons interested in the estate or trust" means the trustor,
if living, all persons beneficially interested in the estate or trust,
persons holding powers over the trust or estate assets, the attorney
general in the case of any charitable trust where the attorney general
would be a necessary party to judicial proceedings concerning the
trust, and any personal representative or trustee of the estate or
trust.
(6) "Principal place of administration of the trust" means the
trustee's usual place of business where the day-to-day records
pertaining to the trust are kept, or the trustee's residence if the
trustee has no such place of business.
(7) The "situs" of a trust means the place where the principal
place of administration of the trust is located, unless otherwise
provided in the instrument creating the trust.
(8) "Trustee" means any acting and qualified trustee of the trust.
(9) "Representative" and other similar terms refer to a person who
virtually represents another under RCW 11.96A.120.
(10) "Citation" or "cite" and other similar terms, when required of
a person interested in the estate or trust or a party to a petition,
means to give notice as required under RCW 11.96A.100. "Citation" or
"cite" and other similar terms, when required of the court, means to
order, as authorized under RCW 11.96A.020 and 11.96A.060, and as
authorized by law.
Sec. 928 RCW 11.96A.120 and 2001 c 203 s 11 are each amended to
read as follows:
(1) This section is intended to adopt the common law concept of
virtual representation. This section supplements the common law
relating to the doctrine of virtual representation and shall not be
construed as limiting the application of that common law doctrine.
(2) Any notice requirement in this title is satisfied if notice is
given as follows:
(a) Where an interest in an estate, trust, or nonprobate asset or
an interest that may be affected by a power of attorney has been given
to persons who comprise a certain class upon the happening of a certain
event, notice may be given to the living persons who would constitute
the class if the event had happened immediately before the commencement
of the proceeding requiring notice, and the persons shall virtually
represent all other members of the class;
(b) Where an interest in an estate, trust, or nonprobate asset or
an interest that may be affected by a power of attorney has been given
to a living person, and the same interest, or a share in it, is to pass
to the surviving spouse or surviving domestic partner or to persons who
are, or might be, the distributees, heirs, issue, or other kindred of
that living person upon the happening of a future event, notice may be
given to that living person, and the living person shall virtually
represent the surviving spouse or surviving domestic partner,
distributees, heirs, issue, or other kindred of the person; and
(c) Except as otherwise provided in this subsection, where an
interest in an estate, trust, or nonprobate asset or an interest that
may be affected by a power of attorney has been given to a person or a
class of persons, or both, upon the happening of any future event, and
the same interest or a share of the interest is to pass to another
person or class of persons, or both, upon the happening of an
additional future event, notice may be given to the living person or
persons who would take the interest upon the happening of the first
event, and the living person or persons shall virtually represent the
persons and classes of persons who might take on the happening of the
additional future event.
(3) A party is not virtually represented by a person receiving
notice if a conflict of interest involving the matter is known to exist
between the notified person and the party.
(4) An action taken by the court is conclusive and binding upon
each person receiving actual or constructive notice or who is otherwise
virtually represented.
Sec. 929 RCW 11.100.025 and 1985 c 30 s 67 are each amended to
read as follows:
Notwithstanding RCW 11.98.070(21)(a), 11.100.060, or any other
statutory provisions to the contrary, with respect to trusts which
require by their own terms or by operation of law that all income be
paid at least annually to the spouse or domestic partner of the trust's
creator, which do not provide that on the termination of the income
interest that the entire then remaining trust estate be paid to the
estate of the spouse or domestic partner of the trust's creator, and
for which a federal estate or gift tax marital deduction is claimed,
any investment in or retention of unproductive property is subject to
a power in the spouse or domestic partner of the trust's creator to
require either that any such asset be made productive, or that it be
converted to productive assets within a reasonable period of time
unless the instrument creating the interest provides otherwise.
Sec. 930 RCW 11.04.290 and 1965 c 145 s 11.04.290 are each
amended to read as follows:
RCW 11.04.250 through 11.04.290 shall apply to community real
property and also to separate estate; and upon the death of either
((husband or wife)) spouse or either domestic partner, title of all
community real property shall vest immediately in the person or persons
to whom the same shall go, pass, descend or be devised, as provided in
RCW 11.04.015, subject to all the charges mentioned in RCW 11.04.250.
Sec. 931 RCW 11.10.030 and 1994 c 221 s 7 are each amended to
read as follows:
(1) A community debt or liability is charged against the entire
community property, with the surviving spouse's or surviving domestic
partner's half and the decedent spouse's or decedent domestic partner's
half charged equally.
(2) A separate debt or liability is charged first against separate
property, and if that is insufficient against the balance of decedent's
half of community property remaining after community debts and
liabilities are satisfied.
(3) A community debt or liability that is also the separate debt or
liability of the decedent is charged first against the whole of the
community property and then against the decedent's separate property.
(4) An expense of administration is charged against the separate
property and the decedent's half of the community property in
proportion to the relative value of the property, unless a different
charging of expenses is shown to be appropriate under the circumstances
including against the surviving spouse's or surviving domestic
partner's share of the community property.
(5) Property of a similar type, community or separate, is
appropriated in accordance with the abatement priorities of RCW
11.10.010.
(6) Property that is primarily chargeable for a debt or liability
is exhausted, in accordance with the abatement priorities of RCW
11.10.010, before resort is had, also in accordance with RCW 11.10.010,
to property that is secondarily chargeable.
Sec. 932 RCW 11.80.010 and 1972 ex.s. c 83 s 1 are each amended
to read as follows:
Whenever it shall be made to appear by petition to any judge of the
superior court of any county that there is property in such county,
either real or personal, that requires care and attention, or is in
such a condition that it is a menace to the public health, safety or
welfare, or that the custodian of such property appointed by the owner
thereof is either unable or unwilling to continue longer in the care
and custody thereof, and that the owner of such property has absented
himself or herself from the county and that his or her whereabouts is
unknown and cannot with reasonable diligence be ascertained, or that
the absentee owner is a person defined in RCW 11.80.120, which petition
shall state the name of the absent owner, his or her approximate age,
his or her last known place of residence, the circumstances under which
he or she left and the place to which he or she was going, if known,
his or her business or occupation and his or her physical appearance
and habits so far as known, the judge to whom such petition is
presented shall set a time for hearing such petition not less than six
weeks from the date of filing, and shall by order direct that a notice
of such hearing be published for three successive weeks in a legal
newspaper published in the county where such petition is filed and in
such other counties and states as will in the judgment of the court be
most likely to come to the attention of the absentee or of persons who
may know his or her whereabouts, which notice shall state the object of
the petition and the date of hearing, and set forth such facts and
circumstances as in the judgment of the court will aid in identifying
the absentee, and shall contain a request that all persons having
knowledge concerning the absentee shall advise the court of the facts:
PROVIDED, HOWEVER, That the court may, upon the filing of said
petition, appoint a temporary trustee, who shall have the powers,
duties and qualifications of a special administrator.
If it shall appear at such hearing that the whereabouts of the
absentee is unknown, but there is reason to believe that upon further
investigation and inquiry he or she may be found, the judge may
continue the hearing and order such inquiry and advertisement as will
in his or her discretion be liable to disclose the whereabouts of the
absentee, but when it shall appear to the judge at such hearing or any
adjournment thereof that the whereabouts of the absentee cannot be
ascertained, he or she shall appoint a suitable person resident of the
county as trustee of such property, taking into consideration the
character of the property and the fitness of such trustee to care for
the same, preferring in such appointment the ((husband or wife)) spouse
or the domestic partner of the absentee to his or her presumptive
heirs, the presumptive heirs to kin more remote, the kin to strangers,
and creditors to those who are not otherwise interested, provided they
are fit persons to have the care and custody of the particular property
in question and will accept the appointment and qualify as hereinafter
provided.
Sec. 933 RCW 11.80.050 and 1965 c 145 s 11.80.050 are each
amended to read as follows:
Whenever a petition is filed in said estate from which it appears
to the satisfaction of the court that the owner of such property left
a ((husband or wife)) spouse or domestic partner, child or children,
dependent upon such absentee for support or upon the property in the
estate of such absentee, either in whole or in part, the court shall
hold a hearing on said petition, after such notice as the court may
direct, and upon such hearing shall enter such order as it deems
advisable and may order an allowance to be paid out of any of the
property of such estate, either community or separate, as the court
shall deem reasonable and necessary for the support and maintenance of
such dependent or dependents, pending the return of the absentee, or
until such time as the property of said estate may be provisionally
distributed to the presumptive heirs or to the devisees and legatees.
Such allowance shall be paid by the trustee to such persons and in such
manner and at such periods of time as the court may direct. For the
purpose of carrying out the provisions of this section the court may
direct the sale of any of the property of the estate, either real or
personal, in accordance with the provisions of RCW 11.80.040.
Sec. 934 RCW 11.114.010 and 2006 c 204 s 1 are each amended to
read as follows:
Unless the context clearly requires otherwise, the definitions in
this section apply throughout this chapter.
(1) "Adult" means an individual other than the minor who has
attained the age of twenty-one years and is older than the minor.
(2) "Benefit plan" means an employer's plan for the benefit of an
employee or partner.
(3) "Broker" means a person lawfully engaged in the business of
effecting transactions in securities or commodities for the person's
own account or for the account of others.
(4) "Guardian" means a person appointed or qualified by a court to
act as general, limited, or temporary guardian of a minor's property or
a person legally authorized to perform substantially the same
functions. Conservator means guardian for transfers made under another
state's law but enforceable in this state's courts.
(5) "Court" means a superior court of the state of Washington.
(6) "Custodial property" means (a) any interest in property
transferred to a custodian under this chapter and (b) the income from
and proceeds of that interest in property.
(7) "Custodian" means a person so designated under RCW 11.114.090
or a successor or substitute custodian designated under RCW 11.114.180.
(8) "Financial institution" means a bank, trust company, savings
institution, or credit union, chartered and supervised under state or
federal law.
(9) "Legal representative" means an individual's personal
representative or guardian.
(10) "Member of the minor's family" means the minor's parent,
stepparent, spouse, domestic partner, grandparent, brother, sister,
uncle, or aunt, whether of the whole or half blood or by adoption.
(11) "Minor" means an individual who has not attained the age of
twenty-five years.
(12) "Person" means an individual, corporation, organization, or
other legal entity.
(13) "State" includes any state of the United States, the District
of Columbia, the Commonwealth of Puerto Rico, and any territory or
possession subject to the legislative authority of the United States.
(14) "Transfer" means a transaction that creates custodial property
under RCW 11.114.090.
(15) "Transferor" means a person who makes a transfer under this
chapter.
(16) "Trust company" means a financial institution, corporation, or
other legal entity, authorized to exercise general trust powers.
NEW SECTION. Sec. 1001 A new section is added to chapter 26.60
RCW to read as follows:
(1) Notwithstanding this chapter, a domestic partnership may be
terminated without filing a petition for dissolution in superior court,
provided that all of the following conditions exist at the time of the
filing of the notice of termination:
(a) The notice of termination of state registered domestic
partnership is signed by both registered domestic partners.
(b) Neither party has children under the age of eighteen, whether
born or adopted before or after registration of the domestic
partnership, and neither of the registered domestic partners, to their
knowledge, is pregnant.
(c) The state registered domestic partnership is not more than five
years in duration.
(d) Neither party has any ownership interest in real property
wherever situated, and neither party leases a residence, with the
exception of the lease of a residence occupied by either party which
satisfies the following requirements:
(i) The lease does not include an option to purchase; and
(ii) The lease terminates within one year from the date of filing
the notice of termination of state registered domestic partnership.
(e) There are no unpaid obligations in excess of four thousand
dollars, as adjusted by subsection (3) of this section, incurred by
either or both of the parties after registration of the domestic
partnership, excluding the amount of any unpaid obligation with respect
to an automobile.
(f) The total fair market value of community property assets, net
of any encumbrances, including any deferred compensation or retirement
plan, is less than twenty-five thousand dollars, as adjusted by
subsection (3) of this section, and neither party has separate property
assets, net of any encumbrances, in excess of that amount.
(g) The parties have executed an agreement setting forth the
division of assets and the assumption of liabilities of the community
property, and have executed any documents, title certificates, bills of
sale, or other evidence of transfer necessary to effectuate the
agreement.
(h) The parties waive any rights to maintenance by the other
domestic partner.
(i) Both parties desire that the domestic partnership be
terminated.
(2) The termination of a domestic partnership pursuant to this
section does not prejudice nor bar the rights of either of the parties
to institute an action in the superior court to set aside the
termination for fraud, duress, mistake, or any other ground recognized
at law or in equity. A court may set aside the termination of state
registered domestic partnership and declare the termination of the
domestic partnership null and void upon proof that the parties did not
meet the requirements of this section at the time of the filing of the
notice of termination of state registered domestic partnership with the
secretary of state.
(3) On January 1, 2009, and on each January 1st of each odd-numbered year thereafter, the amounts in subsection (1)(e) and (f) of
this section shall be adjusted to reflect any change in the value of
the dollar. The adjustments shall be made by multiplying the base
amounts by the percentage change in the Washington state consumer price
index, with the result rounded to the nearest thousand dollars. The
administrative office of the courts shall compute and publish the
amounts.
Sec. 1002 RCW 26.60.050 and 2007 c 156 s 6 are each amended to
read as follows:
(1)(((a) A party)) Parties to a state registered domestic
partnership meeting the conditions in section 1001 of this act may
terminate the relationship without filing a petition under chapter
26.09 RCW by filing with the secretary a notice of termination of the
state registered domestic partnership ((with the secretary)) and an
affidavit stating the parties meet the conditions in section 1001 of
this act and paying the filing fee established pursuant to subsection
(5) of this section. ((The notice must be signed by one or both
parties and notarized. If the notice is not signed by both parties,
the party seeking termination must also file with the secretary an
affidavit stating either that the other party has been served in
writing in the manner prescribed for the service of summons in a civil
action, that a notice of termination is being filed or that the party
seeking termination has not been able to find the other party after
reasonable effort and that notice has been made by publication pursuant
to (b) of this subsection.))
(b) When the other party cannot be found after reasonable effort,
the party seeking termination may provide notice by publication in a
newspaper of general circulation in the county in which the residence
most recently shared by the domestic partners is located. Notice must
be published at least once.
(2) The state registered domestic partnership shall be terminated
effective ninety days after the date of filing the notice of
termination and payment of the filing fee.
(3) Upon receipt of a signed, notarized notice of termination,
((affidavit, if required,)) and the filing fee, the secretary shall
register the notice of termination and provide a certificate of
termination of the state registered domestic partnership to each party
named on the notice. The secretary shall maintain a record of each
notice of termination filed with the secretary and each certificate of
termination issued by the secretary. The secretary shall provide the
state registrar of vital statistics with records of terminations of
state registered domestic partnerships, except for those state
registered domestic partnerships terminated under subsection (4) of
this section.
(4) A state registered domestic partnership is automatically
terminated if, subsequent to the registration of the domestic
partnership with the secretary, ((either or both)) the parties enter
into a marriage to each other that is recognized as valid in this
state((, either with each other or with another person)).
(5) The secretary shall set by rule and collect a reasonable fee
for filing the declaration, calculated to cover the secretary's costs,
but not to exceed fifty dollars. Fees collected under this section are
expressly designated for deposit in the secretary of state's revolving
fund established under RCW 43.07.130.
Sec. 1003 RCW 26.09.004 and 1987 c 460 s 3 are each amended to
read as follows:
The definitions in this section apply throughout this chapter.
(1) "Temporary parenting plan" means a plan for parenting of the
child pending final resolution of any action for dissolution of
marriage or domestic partnership, declaration of invalidity, or legal
separation which is incorporated in a temporary order.
(2) "Permanent parenting plan" means a plan for parenting the
child, including allocation of parenting functions, which plan is
incorporated in any final decree or decree of modification in an action
for dissolution of marriage or domestic partnership, declaration of
invalidity, or legal separation.
(3) "Parenting functions" means those aspects of the parent-child
relationship in which the parent makes decisions and performs functions
necessary for the care and growth of the child. Parenting functions
include:
(a) Maintaining a loving, stable, consistent, and nurturing
relationship with the child;
(b) Attending to the daily needs of the child, such as feeding,
clothing, physical care and grooming, supervision, health care, and day
care, and engaging in other activities which are appropriate to the
developmental level of the child and that are within the social and
economic circumstances of the particular family;
(c) Attending to adequate education for the child, including
remedial or other education essential to the best interests of the
child;
(d) Assisting the child in developing and maintaining appropriate
interpersonal relationships;
(e) Exercising appropriate judgment regarding the child's welfare,
consistent with the child's developmental level and the family's social
and economic circumstances; and
(f) Providing for the financial support of the child.
Sec. 1004 RCW 26.09.010 and 1989 c 375 s 1 are each amended to
read as follows:
(1) Except as otherwise specifically provided herein, the practice
in civil action shall govern all proceedings under this chapter, except
that trial by jury is dispensed with.
(2) A proceeding for dissolution of marriage or domestic
partnership, legal separation or a declaration concerning the validity
of a marriage or domestic partnership shall be entitled "In re the
marriage of . . . . . . and . . . . . ." or "In re the domestic
partnership of . . . . . . and . . . . . ." Such proceedings may be
filed in the superior court of the county where the petitioner resides.
(3) In cases where there has been no prior proceeding in this state
involving the marital or domestic partnership status of the parties or
support obligations for a minor child, a separate parenting and support
proceeding between the parents shall be entitled "In re the parenting
and support of . . . . . ."
(4) The initial pleading in all proceedings under this chapter
shall be denominated a petition. A responsive pleading shall be
denominated a response. Other pleadings, and all pleadings in other
matters under this chapter shall be denominated as provided in the
civil rules for superior court.
(5) In this chapter, "decree" includes "judgment".
(6) A decree of dissolution, of legal separation, or a declaration
concerning the validity of a marriage or domestic partnership shall not
be awarded to one of the parties, but shall provide that it affects the
status previously existing between the parties in the manner decreed.
Sec. 1005 RCW 26.09.020 and 2007 c 496 s 203 are each amended to
read as follows:
(1) A petition in a proceeding for dissolution of marriage or
domestic partnership, legal separation, or for a declaration concerning
the validity of a marriage or domestic partnership shall allege:
(a) The last known state of residence of each party, and if a
party's last known state of residence is Washington, the last known
county of residence;
(b) The date and place of the marriage or, for domestic
partnerships, the date of registration, and place of residence when the
domestic partnership was registered;
(c) If the parties are separated the date on which the separation
occurred;
(d) The names and ages of any child dependent upon either or both
spouses or either or both domestic partners and whether the wife or
domestic partner is pregnant;
(e) Any arrangements as to the residential schedule of, decision
making for, dispute resolution for, and support of the children and the
maintenance of a spouse or domestic partner;
(f) A statement specifying whether there is community or separate
property owned by the parties to be disposed of;
(g) If the county has established a program under RCW 26.12.260, a
statement affirming that the moving party met and conferred with the
program prior to filing the petition;
(h) The relief sought.
(2) Either or both parties to the marriage or to the domestic
partnership may initiate the proceeding.
(3) The petitioner shall complete and file with the petition a
certificate under RCW 43.70.150 on the form provided by the department
of health and the confidential information form under RCW 26.23.050.
(4) Nothing in this section shall be construed to limit or prohibit
the ability of parties to obtain appropriate emergency orders.
Sec. 1006 RCW 26.09.030 and 2005 c 55 s 1 are each amended to
read as follows:
When a party who (1) is a resident of this state, or (2) is a
member of the armed forces and is stationed in this state, or (3) is
married or in a domestic partnership to a party who is a resident of
this state or who is a member of the armed forces and is stationed in
this state, petitions for a dissolution of marriage or dissolution of
domestic partnership, and alleges that the marriage or domestic
partnership is irretrievably broken and when ninety days have elapsed
since the petition was filed and from the date when service of summons
was made upon the respondent or the first publication of summons was
made, the court shall proceed as follows:
(a) If the other party joins in the petition or does not deny that
the marriage or domestic partnership is irretrievably broken, the court
shall enter a decree of dissolution.
(b) If the other party alleges that the petitioner was induced to
file the petition by fraud, or coercion, the court shall make a finding
as to that allegation and, if it so finds shall dismiss the petition.
(c) If the other party denies that the marriage or domestic
partnership is irretrievably broken the court shall consider all
relevant factors, including the circumstances that gave rise to the
filing of the petition and the prospects for reconciliation and shall:
(i) Make a finding that the marriage or domestic partnership is
irretrievably broken and enter a decree of dissolution of the marriage
or domestic partnership; or
(ii) At the request of either party or on its own motion, transfer
the cause to the family court, refer them to another counseling service
of their choice, and request a report back from the counseling service
within sixty days, or continue the matter for not more than sixty days
for hearing. If the cause is returned from the family court or at the
adjourned hearing, the court shall:
(A) Find that the parties have agreed to reconciliation and dismiss
the petition; or
(B) Find that the parties have not been reconciled, and that either
party continues to allege that the marriage or domestic partnership is
irretrievably broken. When such facts are found, the court shall enter
a decree of dissolution of the marriage or domestic partnership.
(d) If the petitioner requests the court to decree legal separation
in lieu of dissolution, the court shall enter the decree in that form
unless the other party objects and petitions for a decree of
dissolution or declaration of invalidity.
(e) In considering a petition for dissolution of marriage or
domestic partnership, a court shall not use a party's pregnancy as the
sole basis for denying or delaying the entry of a decree of dissolution
of marriage or domestic partnership. Granting a decree of dissolution
of marriage or domestic partnership when a party is pregnant does not
affect further proceedings under the uniform parentage act, chapter
26.26 RCW.
Sec. 1007 RCW 26.09.040 and 1987 c 460 s 4 are each amended to
read as follows:
(1) While both parties to an alleged marriage or domestic
partnership are living, and at least one party is resident in this
state or a member of the armed service and stationed in the state, a
petition to have the marriage or domestic partnership declared invalid
may be sought by:
(a) Either or both parties, or the guardian of an incompetent
spouse or incompetent domestic partner, for any cause specified in
subsection (4) of this section; or
(b) Either or both parties, the legal spouse or domestic partner,
or a child of either party when it is alleged that ((the marriage is
bigamous)) either or both parties is married to or in a domestic
partnership with another person.
(2) If the validity of a marriage or domestic partnership is denied
or questioned at any time, either or both parties to the marriage or
either or both parties to the domestic partnership may petition the
court for a judicial determination of the validity of such marriage or
domestic partnership.
(3) In a proceeding to declare the invalidity of a marriage or
domestic partnership, the court shall proceed in the manner and shall
have the jurisdiction, including the authority to provide for
maintenance, a parenting plan for minor children, and division of the
property of the parties, provided by this chapter.
(4) After hearing the evidence concerning the validity of a
marriage or domestic partnership, if both parties to the alleged
marriage or domestic partnership are still living, the court:
(a) If it finds the marriage or domestic partnership to be valid,
shall enter a decree of validity;
(b) If it finds that:
(i) The marriage or domestic partnership should not have been
contracted because of age of one or both of the parties, lack of
required parental or court approval, a prior undissolved marriage of
one or both of the parties, a prior domestic partnership of one or both
parties that has not been terminated or dissolved, reasons of
consanguinity, or because a party lacked capacity to consent to the
marriage or domestic partnership, either because of mental incapacity
or because of the influence of alcohol or other incapacitating
substances, or because a party was induced to enter into the marriage
or domestic partnership by force or duress, or by fraud involving the
essentials of marriage or domestic partnership, and that the parties
have not ratified their marriage or domestic partnership by voluntarily
cohabiting after attaining the age of consent, or after attaining
capacity to consent, or after cessation of the force or duress or
discovery of the fraud, shall declare the marriage or domestic
partnership invalid as of the date it was purportedly contracted;
(ii) The marriage or domestic partnership should not have been
contracted because of any reason other than those above, shall upon
motion of a party, order any action which may be appropriate to
complete or to correct the record and enter a decree declaring such
marriage or domestic partnership to be valid for all purposes from the
date upon which it was purportedly contracted;
(c) If it finds that a marriage or domestic partnership contracted
in a jurisdiction other than this state, was void or voidable under the
law of the place where the marriage or domestic partnership was
contracted, and in the absence of proof that such marriage or domestic
partnership was subsequently validated by the laws of the place of
contract or of a subsequent domicile of the parties, shall declare the
marriage or domestic partnership invalid as of the date of the marriage
or domestic partnership.
(5) Any child of the parties born or conceived during the existence
of a marriage or domestic partnership of record is legitimate and
remains legitimate notwithstanding the entry of a declaration of
invalidity of the marriage or domestic partnership.
Sec. 1008 RCW 26.09.050 and 2000 c 119 s 6 are each amended to
read as follows:
(1) In entering a decree of dissolution of marriage or domestic
partnership, legal separation, or declaration of invalidity, the court
shall determine the marital or domestic partnership status of the
parties, make provision for a parenting plan for any minor child of the
marriage or domestic partnership, make provision for the support of any
child of the marriage or domestic partnership entitled to support,
consider or approve provision for the maintenance of either spouse or
either domestic partner, make provision for the disposition of property
and liabilities of the parties, make provision for the allocation of
the children as federal tax exemptions, make provision for any
necessary continuing restraining orders including the provisions
contained in RCW 9.41.800, make provision for the issuance within this
action of the restraint provisions of a domestic violence protection
order under chapter 26.50 RCW or an antiharassment protection order
under chapter 10.14 RCW, and make provision for the change of name of
any party.
(2) Restraining orders issued under this section restraining or
enjoining the person from molesting or disturbing another party, or
from going onto the grounds of or entering the home, workplace, or
school of the other party or the day care or school of any child, or
prohibiting the person from knowingly coming within, or knowingly
remaining within, a specified distance of a location, shall prominently
bear on the front page of the order the legend: VIOLATION OF THIS
ORDER WITH ACTUAL NOTICE OF ITS TERMS IS A CRIMINAL OFFENSE UNDER
CHAPTER 26.50 RCW AND WILL SUBJECT A VIOLATOR TO ARREST.
(3) The court shall order that any restraining order bearing a
criminal offense legend, any domestic violence protection order, or any
antiharassment protection order granted under this section, in addition
to the law enforcement information sheet or proof of service of the
order, be forwarded by the clerk of the court on or before the next
judicial day to the appropriate law enforcement agency specified in the
order. Upon receipt of the order, the law enforcement agency shall
enter the order into any computer-based criminal intelligence
information system available in this state used by law enforcement
agencies to list outstanding warrants. The order is fully enforceable
in any county in the state.
(4) If a restraining order issued pursuant to this section is
modified or terminated, the clerk of the court shall notify the law
enforcement agency specified in the order on or before the next
judicial day. Upon receipt of notice that an order has been
terminated, the law enforcement agency shall remove the order from any
computer-based criminal intelligence system.
Sec. 1009 RCW 26.09.060 and 2000 c 119 s 7 are each amended to
read as follows:
(1) In a proceeding for:
(a) Dissolution of marriage or domestic partnership, legal
separation, or a declaration of invalidity; or
(b) Disposition of property or liabilities, maintenance, or support
following dissolution of the marriage or the domestic partnership by a
court which lacked personal jurisdiction over the absent spouse or
absent domestic partner; either party may move for temporary
maintenance or for temporary support of children entitled to support.
The motion shall be accompanied by an affidavit setting forth the
factual basis for the motion and the amounts requested.
(2) As a part of a motion for temporary maintenance or support or
by independent motion accompanied by affidavit, either party may
request the court to issue a temporary restraining order or preliminary
injunction, providing relief proper in the circumstances, and
restraining or enjoining any person from:
(a) Transferring, removing, encumbering, concealing, or in any way
disposing of any property except in the usual course of business or for
the necessities of life, and, if so restrained or enjoined, requiring
him or her to notify the moving party of any proposed extraordinary
expenditures made after the order is issued;
(b) Molesting or disturbing the peace of the other party or of any
child;
(c) Going onto the grounds of or entering the home, workplace, or
school of the other party or the day care or school of any child upon
a showing of the necessity therefor;
(d) Knowingly coming within, or knowingly remaining within, a
specified distance from a specified location; and
(e) Removing a child from the jurisdiction of the court.
(3) Either party may request a domestic violence protection order
under chapter 26.50 RCW or an antiharassment protection order under
chapter 10.14 RCW on a temporary basis. The court may grant any of the
relief provided in RCW 26.50.060 except relief pertaining to
residential provisions for the children which provisions shall be
provided for under this chapter, and any of the relief provided in RCW
10.14.080. Ex parte orders issued under this subsection shall be
effective for a fixed period not to exceed fourteen days, or upon court
order, not to exceed twenty-four days if necessary to ensure that all
temporary motions in the case can be heard at the same time.
(4) In issuing the order, the court shall consider the provisions
of RCW 9.41.800.
(5) The court may issue a temporary restraining order without
requiring notice to the other party only if it finds on the basis of
the moving affidavit or other evidence that irreparable injury could
result if an order is not issued until the time for responding has
elapsed.
(6) The court may issue a temporary restraining order or
preliminary injunction and an order for temporary maintenance or
support in such amounts and on such terms as are just and proper in the
circumstances. The court may in its discretion waive the filing of the
bond or the posting of security.
(7) Restraining orders issued under this section restraining the
person from molesting or disturbing another party, or from going onto
the grounds of or entering the home, workplace, or school of the other
party or the day care or school of any child, or prohibiting the person
from knowingly coming within, or knowingly remaining within, a
specified distance of a location, shall prominently bear on the front
page of the order the legend: VIOLATION OF THIS ORDER WITH ACTUAL
NOTICE OF ITS TERMS IS A CRIMINAL OFFENSE UNDER CHAPTER 26.50 RCW AND
WILL SUBJECT A VIOLATOR TO ARREST.
(8) The court shall order that any temporary restraining order
bearing a criminal offense legend, any domestic violence protection
order, or any antiharassment protection order granted under this
section be forwarded by the clerk of the court on or before the next
judicial day to the appropriate law enforcement agency specified in the
order. Upon receipt of the order, the law enforcement agency shall
enter the order into any computer-based criminal intelligence
information system available in this state used by law enforcement
agencies to list outstanding warrants. Entry into the computer-based
criminal intelligence information system constitutes notice to all law
enforcement agencies of the existence of the order. The order is fully
enforceable in any county in the state.
(9) If a restraining order issued pursuant to this section is
modified or terminated, the clerk of the court shall notify the law
enforcement agency specified in the order on or before the next
judicial day. Upon receipt of notice that an order has been
terminated, the law enforcement agency shall remove the order from any
computer-based criminal intelligence system.
(10) A temporary order, temporary restraining order, or preliminary
injunction:
(a) Does not prejudice the rights of a party or any child which are
to be adjudicated at subsequent hearings in the proceeding;
(b) May be revoked or modified;
(c) Terminates when the final decree is entered, except as provided
under subsection (11) of this section, or when the petition for
dissolution, legal separation, or declaration of invalidity is
dismissed;
(d) May be entered in a proceeding for the modification of an
existing decree.
(11) Delinquent support payments accrued under an order for
temporary support remain collectible and are not extinguished when a
final decree is entered unless the decree contains specific language to
the contrary. A support debt under a temporary order owed to the state
for public assistance expenditures shall not be extinguished by the
final decree if:
(a) The obligor was given notice of the state's interest under
chapter 74.20A RCW; or
(b) The temporary order directs the obligor to make support
payments to the office of support enforcement or the Washington state
support registry.
Sec. 1010 RCW 26.09.070 and 1989 c 375 s 4 are each amended to
read as follows:
(1) The parties to a marriage or a domestic partnership, in order
to promote the amicable settlement of disputes attendant upon their
separation or upon the filing of a petition for dissolution of their
marriage or domestic partnership, a decree of legal separation, or
declaration of invalidity of their marriage or domestic partnership,
may enter into a written separation contract providing for the
maintenance of either of them, the disposition of any property owned by
both or either of them, the parenting plan and support for their
children and for the release of each other from all obligation except
that expressed in the contract.
(2) If the parties to such contract elect to live separate and
apart without any court decree, they may record such contract and cause
notice thereof to be published in a legal newspaper of the county
wherein the parties resided prior to their separation. Recording such
contract and publishing notice of the making thereof shall constitute
notice to all persons of such separation and of the facts contained in
the recorded document.
(3) If either or both of the parties to a separation contract shall
at the time of the execution thereof, or at a subsequent time, petition
the court for dissolution of their marriage or domestic partnership,
for a decree of legal separation, or for a declaration of invalidity of
their marriage or domestic partnership, the contract, except for those
terms providing for a parenting plan for their children, shall be
binding upon the court unless it finds, after considering the economic
circumstances of the parties and any other relevant evidence produced
by the parties on their own motion or on request of the court, that the
separation contract was unfair at the time of its execution. Child
support may be included in the separation contract and shall be
reviewed in the subsequent proceeding for compliance with RCW
26.19.020.
(4) If the court in an action for dissolution of marriage or
domestic partnership, legal separation, or declaration of invalidity
finds that the separation contract was unfair at the time of its
execution, it may make orders for the maintenance of either party, the
disposition of their property and the discharge of their obligations.
(5) Unless the separation contract provides to the contrary, the
agreement shall be set forth in the decree of dissolution, legal
separation, or declaration of invalidity, or filed in the action or
made an exhibit and incorporated by reference, except that in all cases
the terms of the parenting plan shall be set out in the decree, and the
parties shall be ordered to comply with its terms.
(6) Terms of the contract set forth or incorporated by reference in
the decree may be enforced by all remedies available for the
enforcement of a judgment, including contempt, and are enforceable as
contract terms.
(7) When the separation contract so provides, the decree may
expressly preclude or limit modification of any provision for
maintenance set forth in the decree. Terms of a separation contract
pertaining to a parenting plan for the children and, in the absence of
express provision to the contrary, terms providing for maintenance set
forth or incorporated by reference in the decree are automatically
modified by modification of the decree.
(8) If at any time the parties to the separation contract by mutual
agreement elect to terminate the separation contract they may do so
without formality unless the contract was recorded as in subsection (2)
of this section, in which case a statement should be filed terminating
the contract.
Sec. 1011 RCW 26.09.080 and 1989 c 375 s 5 are each amended to
read as follows:
In a proceeding for dissolution of the marriage or domestic
partnership, legal separation, declaration of invalidity, or in a
proceeding for disposition of property following dissolution of the
marriage or the domestic partnership by a court which lacked personal
jurisdiction over the absent spouse or absent domestic partner or
lacked jurisdiction to dispose of the property, the court shall,
without regard to ((marital)) misconduct, make such disposition of the
property and the liabilities of the parties, either community or
separate, as shall appear just and equitable after considering all
relevant factors including, but not limited to:
(1) The nature and extent of the community property;
(2) The nature and extent of the separate property;
(3) The duration of the marriage or domestic partnership; and
(4) The economic circumstances of each spouse or domestic partner
at the time the division of property is to become effective, including
the desirability of awarding the family home or the right to live
therein for reasonable periods to a spouse or domestic partner with
whom the children reside the majority of the time.
Sec. 1012 RCW 26.09.090 and 1989 c 375 s 6 are each amended to
read as follows:
(1) In a proceeding for dissolution of marriage or domestic
partnership, legal separation, declaration of invalidity, or in a
proceeding for maintenance following dissolution of the marriage or
domestic partnership by a court which lacked personal jurisdiction over
the absent spouse or absent domestic partner, the court may grant a
maintenance order for either spouse or either domestic partner. The
maintenance order shall be in such amounts and for such periods of time
as the court deems just, without regard to ((marital)) misconduct,
after considering all relevant factors including but not limited to:
(a) The financial resources of the party seeking maintenance,
including separate or community property apportioned to him or her, and
his or her ability to meet his or her needs independently, including
the extent to which a provision for support of a child living with the
party includes a sum for that party;
(b) The time necessary to acquire sufficient education or training
to enable the party seeking maintenance to find employment appropriate
to his or her skill, interests, style of life, and other attendant
circumstances;
(c) The standard of living established during the marriage or
domestic partnership;
(d) The duration of the marriage or domestic partnership;
(e) The age, physical and emotional condition, and financial
obligations of the spouse or domestic partner seeking maintenance; and
(f) The ability of the spouse or domestic partner from whom
maintenance is sought to meet his or her needs and financial
obligations while meeting those of the spouse or domestic partner
seeking maintenance.
Sec. 1013 RCW 26.09.100 and 1991 sp.s. c 28 s 1 are each amended
to read as follows:
(1) In a proceeding for dissolution of marriage or domestic
partnership, legal separation, declaration of invalidity, maintenance,
or child support, after considering all relevant factors but without
regard to ((marital)) misconduct, the court shall order either or both
parents owing a duty of support to any child of the marriage or the
domestic partnership dependent upon either or both spouses or domestic
partners to pay an amount determined under chapter 26.19 RCW.
(2) The court may require automatic periodic adjustments or
modifications of child support. That portion of any decree that
requires periodic adjustments or modifications of child support shall
use the provisions in chapter 26.19 RCW as the basis for the adjustment
or modification. Provisions in the decree for periodic adjustment or
modification shall not conflict with RCW 26.09.170 except that the
decree may require periodic adjustments or modifications of support
more frequently than the time periods established pursuant to RCW
26.09.170.
(3) Upon motion of a party and without a substantial change of
circumstances, the court shall modify the decree to comply with
subsection (2) of this section as to installments accruing subsequent
to entry of the court's order on the motion for modification.
(4) The adjustment or modification provision may be modified by the
court due to economic hardship consistent with the provisions of RCW
26.09.170(((4))) (5)(a).
Sec. 1014 RCW 26.09.110 and 1987 c 460 s 11 are each amended to
read as follows:
The court may appoint an attorney to represent the interests of a
minor or dependent child with respect to provision for the parenting
plan in an action for dissolution of marriage or domestic partnership,
legal separation, or declaration concerning the validity of a marriage
or domestic partnership. The court shall enter an order for costs,
fees, and disbursements in favor of the child's attorney. The order
shall be made against either or both parents, except that, if both
parties are indigent, the costs, fees, and disbursements shall be borne
by the county.
Sec. 1015 RCW 26.09.120 and 1994 c 230 s 2 are each amended to
read as follows:
(1) The court shall order support payments, including ((spousal))
maintenance if child support is ordered, to be made to the Washington
state support registry, or the person entitled to receive the payments
under an order approved by the court as provided in RCW 26.23.050.
(2) Maintenance payments, when ordered in an action where there is
no dependent child, may be ordered to be paid to the person entitled to
receive the payments, or the clerk of the court as trustee for
remittance to the persons entitled to receive the payments.
(3) If support or maintenance payments are made to the clerk of
court, the clerk:
(a) Shall maintain records listing the amount of payments, the date
when payments are required to be made, and the names and addresses of
the parties affected by the order;
(b) May by local court rule accept only certified funds or cash as
payment; and
(c) Shall accept only certified funds or cash for five years in all
cases after one check has been returned for nonsufficient funds or
account closure.
(4) The parties affected by the order shall inform the registry
through which the payments are ordered to be paid of any change of
address or of other conditions that may affect the administration of
the order.
Sec. 1016 RCW 26.09.150 and 1989 1st ex.s. c 9 s 205 and 1989 c
375 s 30 are each reenacted and amended to read as follows:
(1) A decree of dissolution of marriage or domestic partnership,
legal separation, or declaration of invalidity is final when entered,
subject to the right of appeal. An appeal which does not challenge the
finding that the marriage or domestic partnership is irretrievably
broken or was invalid, does not delay the finality of the dissolution
or declaration of invalidity and either party may remarry or enter into
a domestic partnership pending such an appeal.
(2)(a) No earlier than six months after entry of a decree of legal
separation, on motion of either party, the court shall convert the
decree of legal separation to a decree of dissolution of marriage or
domestic partnership. The clerk of court shall complete the
certificate as provided for in RCW 70.58.200 on the form provided by
the department of health. On or before the tenth day of each month,
the clerk of the court shall forward to the state registrar of vital
statistics the certificate of each decree of divorce, dissolution of
marriage or domestic partnership, annulment, or separate maintenance
granted during the preceding month.
(b) Once a month, the state registrar of vital statistics shall
prepare a list of persons for whom a certificate of dissolution of
domestic partnership was transmitted to the registrar and was not
included in a previous list, and shall supply the list to the secretary
of state.
(3) Upon request of a party whose marriage or domestic partnership
is dissolved or declared invalid, the court shall order a former name
restored or the court may, in its discretion, order a change to another
name.
Sec. 1017 RCW 26.09.170 and 2002 c 199 s 1 are each amended to
read as follows:
(1) Except as otherwise provided in subsection (7) of RCW
26.09.070, the provisions of any decree respecting maintenance or
support may be modified: (a) Only as to installments accruing
subsequent to the petition for modification or motion for adjustment
except motions to compel court-ordered adjustments, which shall be
effective as of the first date specified in the decree for implementing
the adjustment; and, (b) except as otherwise provided in subsections
(5), (6), (9), and (10) of this section, only upon a showing of a
substantial change of circumstances. The provisions as to property
disposition may not be revoked or modified, unless the court finds the
existence of conditions that justify the reopening of a judgment under
the laws of this state.
(2) Unless otherwise agreed in writing or expressly provided in the
decree the obligation to pay future maintenance is terminated upon the
death of either party or the remarriage of the party receiving
maintenance or registration of a new domestic partnership of the party
receiving maintenance.
(3) Unless otherwise agreed in writing or expressly provided in the
decree, provisions for the support of a child are terminated by
emancipation of the child or by the death of the parent obligated to
support the child.
(4) Unless expressly provided by an order of the superior court or
a court of comparable jurisdiction, the support provisions of the order
are terminated upon the marriage or registration of a domestic
partnership to each other of parties to a paternity order, or upon
remarriage or registration of a domestic partnership to each other of
parties to a decree of dissolution. The remaining provisions of the
order, including provisions establishing paternity, remain in effect.
(5) An order of child support may be modified one year or more
after it has been entered without showing a substantial change of
circumstances:
(a) If the order in practice works a severe economic hardship on
either party or the child;
(b) If a party requests an adjustment in an order for child support
which was based on guidelines which determined the amount of support
according to the child's age, and the child is no longer in the age
category on which the current support amount was based;
(c) If a child is still in high school, upon a finding that there
is a need to extend support beyond the eighteenth birthday to complete
high school; or
(d) To add an automatic adjustment of support provision consistent
with RCW 26.09.100.
(6) An order or decree entered prior to June 7, 1984, may be
modified without showing a substantial change of circumstances if the
requested modification is to:
(a) Require health insurance coverage for a child named therein; or
(b) Modify an existing order for health insurance coverage.
(7) An obligor's voluntary unemployment or voluntary
underemployment, by itself, is not a substantial change of
circumstances.
(8) The department of social and health services may file an action
to modify an order of child support if public assistance money is being
paid to or for the benefit of the child and the child support order is
twenty-five percent or more below the appropriate child support amount
set forth in the standard calculation as defined in RCW 26.19.011 and
reasons for the deviation are not set forth in the findings of fact or
order. The determination of twenty-five percent or more shall be based
on the current income of the parties and the department shall not be
required to show a substantial change of circumstances if the reasons
for the deviations were not set forth in the findings of fact or order.
(9)(a) All child support decrees may be adjusted once every twenty-four months based upon changes in the income of the parents without a
showing of substantially changed circumstances. Either party may
initiate the adjustment by filing a motion and child support
worksheets.
(b) A party may petition for modification in cases of substantially
changed circumstances under subsection (1) of this section at any time.
However, if relief is granted under subsection (1) of this section,
twenty-four months must pass before a motion for an adjustment under
(a) of this subsection may be filed.
(c) If, pursuant to (a) of this subsection or subsection (10) of
this section, the court adjusts or modifies a child support obligation
by more than thirty percent and the change would cause significant
hardship, the court may implement the change in two equal increments,
one at the time of the entry of the order and the second six months
from the entry of the order. Twenty-four months must pass following
the second change before a motion for an adjustment under (a) of this
subsection may be filed.
(d) A parent who is receiving transfer payments who receives a wage
or salary increase may not bring a modification action pursuant to
subsection (1) of this section alleging that increase constitutes a
substantial change of circumstances.
(e) The department of social and health services may file an action
at any time to modify an order of child support in cases of
substantially changed circumstances if public assistance money is being
paid to or for the benefit of the child. The determination of the
existence of substantially changed circumstances by the department that
lead to the filing of an action to modify the order of child support is
not binding upon the court.
(10) An order of child support may be adjusted twenty-four months
from the date of the entry of the decree or the last adjustment or
modification, whichever is later, based upon changes in the economic
table or standards in chapter 26.19 RCW.
Sec. 1018 RCW 26.09.210 and 1987 c 460 s 15 are each amended to
read as follows:
The court may interview the child in chambers to ascertain the
child's wishes as to the child's residential schedule in a proceeding
for dissolution of marriage or domestic partnership, legal separation,
or declaration of invalidity. The court may permit counsel to be
present at the interview. The court shall cause a record of the
interview to be made and to be made part of the record in the case.
The court may seek the advice of professional personnel whether or
not they are employed on a regular basis by the court. The advice
given shall be in writing and shall be made available by the court to
counsel upon request. Counsel may call for cross-examination any
professional personnel consulted by the court.
Sec. 1019 RCW 26.09.255 and 1987 c 460 s 22 are each amended to
read as follows:
(1) A relative((, as defined in RCW 9A.40.010,)) may bring civil
action against any other relative if, with intent to deny access to a
child by that relative of the child who has a right to physical custody
of or visitation with the child or a parent with whom the child resides
pursuant to a parenting plan order, the relative takes, entices, or
conceals the child from that relative. The plaintiff may be awarded,
in addition to any damages awarded by the court, the reasonable
expenses incurred by the plaintiff in locating the child, including,
but not limited to, investigative services and reasonable attorneys'
fees.
(2) "Relative" means an ancestor, descendant, or sibling including
a relative of the same degree through marriage, domestic partnership,
or adoption, or a spouse or domestic partner.
Sec. 1020 RCW 26.09.280 and 1991 c 367 s 10 are each amended to
read as follows:
Every action or proceeding to change, modify, or enforce any final
order, judgment, or decree entered in any dissolution or legal
separation or declaration concerning the validity of a marriage or
domestic partnership, whether under this chapter or prior law,
regarding the parenting plan or child support for the minor children of
the marriage or the domestic partnership may be brought in the county
where the minor children are then residing, or in the court in which
the final order, judgment, or decree was entered, or in the county
where the parent or other person who has the care, custody, or control
of the children is then residing.
Sec. 1021 RCW 26.09.290 and 1973 1st ex.s. c 157 s 29 are each
amended to read as follows:
Whenever either of the parties in ((a divorce action)) an action
for dissolution of marriage or domestic partnership is, under the law,
entitled to a final judgment, but by mistake, negligence, or
inadvertence the same has not been signed, filed, or entered, if no
appeal has been taken from the interlocutory order or motion for a new
trial made, the court, on the motion of either party thereto or upon
its own motion, may cause a final judgment to be signed, dated, filed,
and entered therein granting the ((divorce)) dissolution as of the date
when the same could have been given or made by the court if applied
for. The court may cause such final judgment to be signed, dated,
filed, and entered nunc pro tunc as aforesaid, even though a final
judgment may have been previously entered where by mistake, negligence
or inadvertence the same has not been signed, filed, or entered as soon
as such final judgment, the parties to such action shall be deemed to
have been restored to the status of single persons as of the date
affixed to such judgment, and any marriage or any domestic partnership
of either of such parties subsequent to six months after the granting
of the interlocutory order as shown by the minutes of the court, and
after the final judgment could have been entered under the law if
applied for, shall be valid for all purposes as of the date affixed to
such final judgment, upon the filing thereof.
Sec. 1022 RCW 26.09.310 and 1989 c 377 s 1 are each amended to
read as follows:
No health care provider or facility, or their agent, shall be
liable for damages in any civil action brought by a parent or guardian
based only on a lack of the parent or guardian's consent for medical
care of a minor child, if consent to the care has been given by a
parent or guardian of the minor. The immunity provided by this section
shall apply regardless of whether:
(1) The parents are married, unmarried, in a domestic partnership
or not, or separated at the time of consent or treatment;
(2) The consenting parent is, or is not, a custodial parent of the
minor;
(3) The giving of consent by a parent is, or is not, full
performance of any agreement between the parents, or of any order or
decree in any action entered pursuant to chapter 26.09 RCW;
(4) The action or suit is brought by or on behalf of the
nonconsenting parent, the minor child, or any other person.
Sec. 1023 RCW 26.10.050 and 1987 c 460 s 29 are each amended to
read as follows:
In a custody proceeding, the court may order either or both parents
owing a duty of support to any child of the marriage or the domestic
partnership dependent upon either or both spouses or either or both
domestic partners to pay an amount reasonable or necessary for the
child's support.
Sec. 1024 RCW 26.10.180 and 1989 c 375 s 21 are each amended to
read as follows:
(1) A relative((, as defined in RCW 9A.40.010,)) may bring civil
action against any other relative who, with intent to deny access to a
child by another relative of the child who has a right to physical
custody of or visitation with the child, takes, entices, or conceals
the child from that relative. The plaintiff may be awarded, in
addition to any damages awarded by the court, the reasonable expenses
incurred by the plaintiff in locating the child, including, but not
limited to, investigative services and reasonable attorneys' fees.
(2) "Relative" means an ancestor, descendant, or sibling including
a relative of the same degree through marriage, domestic partnership,
or adoption, or a spouse or domestic partner.
Sec. 1025 RCW 26.12.190 and 1991 c 367 s 14 are each amended to
read as follows:
(1) The family court shall have jurisdiction and full power in all
pending cases to make, alter, modify, and enforce all temporary and
permanent orders regarding the following: Parenting plans, child
support, custody of children, visitation, possession of property,
maintenance, contempt, custodial interference, and orders for
attorneys' fees, suit money or costs as may appear just and equitable.
Court commissioners or judges shall not have authority to require the
parties to mediate disputes concerning child support.
(2) Family court investigation, evaluation, mediation, treatment,
and reconciliation services, and any other services may be used to
assist the court to develop an order as the court deems necessary to
preserve the marriage or the domestic partnership, implement an
amicable settlement, and resolve the issues in controversy.
Sec. 1026 RCW 26.18.010 and 1993 c 426 s 1 are each amended to
read as follows:
The legislature finds that there is an urgent need for vigorous
enforcement of child support and ((spousal)) maintenance obligations,
and that stronger and more efficient statutory remedies need to be
established to supplement and complement the remedies provided in
chapters 26.09, ((26.21)) 26.21A, 26.26, 74.20, and 74.20A RCW.
Sec. 1027 RCW 26.18.020 and 1993 c 426 s 2 are each amended to
read as follows:
Unless the context clearly requires otherwise, the definitions in
this section apply throughout this chapter.
(1) "Dependent child" means any child for whom a support order has
been established or for whom a duty of support is owed.
(2) "Duty of ((spousal)) maintenance" means the duty to provide for
the needs of a spouse or former spouse or domestic partner or former
domestic partner imposed under chapter 26.09 RCW.
(3) "Duty of support" means the duty to provide for the needs of a
dependent child, which may include necessary food, clothing, shelter,
education, and health care. The duty includes any obligation to make
monetary payments, to pay expenses, including ((spousal)) maintenance
in cases in which there is a dependent child, or to reimburse another
person or an agency for the cost of necessary support furnished a
dependent child. The duty may be imposed by court order, by operation
of law, or otherwise.
(4) "Obligee" means the custodian of a dependent child, the spouse
or former spouse or domestic partner or former domestic partner, or
person or agency, to whom a duty of support or duty of ((spousal))
maintenance is owed, or the person or agency to whom the right to
receive or collect support or ((spousal)) maintenance has been
assigned.
(5) "Obligor" means the person owing a duty of support or duty of
((spousal)) maintenance.
(6) "Support or maintenance order" means any judgment, decree, or
order of support or ((spousal)) maintenance issued by the superior
court or authorized agency of the state of Washington; or a judgment,
decree, or other order of support or ((spousal)) maintenance issued by
a court or agency of competent jurisdiction in another state or
country, which has been registered or otherwise made enforceable in
this state.
(7) "Employer" includes the United States government, a state or
local unit of government, and any person or entity who pays or owes
earnings or remuneration for employment to the obligor.
(8) "Earnings" means compensation paid or payable for personal
services or remuneration for employment, whether denominated as wages,
salary, commission, bonus, or otherwise, and, notwithstanding any other
provision of law making the payments exempt from garnishment,
attachment, or other process to satisfy support or ((spousal))
maintenance obligations, specifically includes periodic payments
pursuant to pension or retirement programs, or insurance policies of
any type, but does not include payments made under Title 50 RCW, except
as provided in RCW 50.40.020 and 50.40.050, or Title 74 RCW.
(9) "Disposable earnings" means that part of the earnings of an
individual remaining after the deduction from those earnings of any
amount required by law to be withheld.
(10) "Department" means the department of social and health
services.
(11) "Health insurance coverage" includes any coverage under which
medical services are provided by an employer or a union whether that
coverage is provided through a self-insurance program, under the
employee retirement income security act of 1974, a commercial insurer
pursuant to chapters 48.20 and 48.21 RCW, a health care service
contractor pursuant to chapter 48.44 RCW, or a health maintenance
organization pursuant to chapter 48.46 RCW, and the state through
chapter 41.05 RCW.
(12) "Insurer" means a commercial insurance company providing
disability insurance under chapter 48.20 or 48.21 RCW, a health care
service contractor providing health care coverage under chapter 48.44
RCW, a health maintenance organization providing comprehensive health
care services under chapter 48.46 RCW, and shall also include any
employer or union which is providing health insurance coverage on a
self-insured basis.
(13) "Remuneration for employment" means moneys due from or payable
by the United States to an individual within the scope of 42 U.S.C.
Sec. 659 and 42 U.S.C. Sec. 662(f).
Sec. 1028 RCW 26.18.030 and 1993 c 426 s 3 are each amended to
read as follows:
(1) The remedies provided in this chapter are in addition to, and
not in substitution for, any other remedies provided by law.
(2) This chapter applies to any dependent child, whether born
before or after June 7, 1984, and regardless of the past or current
marital status or domestic partnership status of the parents, and to a
spouse or former spouse or domestic partner or former domestic partner.
(3) This chapter shall be liberally construed to assure that all
dependent children are adequately supported.
Sec. 1029 RCW 26.18.040 and 1993 c 426 s 4 are each amended to
read as follows:
(1) A proceeding to enforce a duty of support or ((spousal))
maintenance is commenced:
(a) By filing a petition for an original action; or
(b) By motion in an existing action or under an existing cause
number.
(2) Venue for the action is in the superior court of the county
where the dependent child resides or is present, where the obligor or
obligee resides, or where the prior support or maintenance order was
entered. The petition or motion may be filed by the obligee, the
state, or any agency providing care or support to the dependent child.
A filing fee shall not be assessed in cases brought on behalf of the
state of Washington.
(3) The court retains continuing jurisdiction under this chapter
until all duties of either support or ((spousal)) maintenance, or both,
of the obligor, including arrearages, have been satisfied.
Sec. 1030 RCW 26.18.050 and 1993 c 426 s 5 are each amended to
read as follows:
(1) If an obligor fails to comply with a support or ((spousal))
maintenance order, a petition or motion may be filed without notice
under RCW 26.18.040 to initiate a contempt action as provided in
chapter 7.21 RCW. If the court finds there is reasonable cause to
believe the obligor has failed to comply with a support or ((spousal))
maintenance order, the court may issue an order to show cause requiring
the obligor to appear at a certain time and place for a hearing, at
which time the obligor may appear to show cause why the relief
requested should not be granted. A copy of the petition or motion
shall be served on the obligor along with the order to show cause.
(2) Service of the order to show cause shall be by personal
service, or in the manner provided in the civil rules of superior court
or applicable statute.
(3) If the order to show cause served upon the obligor included a
warning that an arrest warrant could be issued for failure to appear,
the court may issue a bench warrant for the arrest of the obligor if
the obligor fails to appear on the return date provided in the order.
(4) If the obligor contends at the hearing that he or she lacked
the means to comply with the support or ((spousal)) maintenance order,
the obligor shall establish that he or she exercised due diligence in
seeking employment, in conserving assets, or otherwise in rendering
himself or herself able to comply with the court's order.
(5) As provided in RCW 26.18.040, the court retains continuing
jurisdiction under this chapter and may use a contempt action to
enforce a support or maintenance order until the obligor satisfies all
duties of support, including arrearages, that accrued pursuant to the
support or maintenance order.
Sec. 1031 RCW 26.18.070 and 1994 c 230 s 3 are each amended to
read as follows:
(1) A petition or motion seeking a mandatory wage assignment in an
action under RCW 26.18.040 may be filed by an obligee if the obligor
is:
(a) Subject to a support order allowing immediate income
withholding; or
(b) More than fifteen days past due in child support or ((spousal))
maintenance payments in an amount equal to or greater than the
obligation payable for one month.
(2) The petition or motion shall include a sworn statement by the
obligee, stating the facts authorizing the issuance of the wage
assignment order, including:
(a) That the obligor, stating his or her name and residence, is:
(i) Subject to a support order allowing immediate income
withholding; or
(ii) More than fifteen days past due in child support or
((spousal)) maintenance payments in an amount equal to or greater than
the obligation payable for one month;
(b) A description of the terms of the order requiring payment of
support or ((spousal)) maintenance, and the amount past due, if any;
(c) The name and address of the obligor's employer;
(d) That notice by personal service or any form of mail requiring
a return receipt, has been provided to the obligor at least fifteen
days prior to the obligee seeking a mandatory wage assignment, unless
the order for support or maintenance states that the obligee may seek
a mandatory wage assignment without notice to the obligor; and
(e) In cases not filed by the state, whether the obligee has
received public assistance from any source and, if the obligee has
received public assistance, that the department of social and health
services has been notified in writing of the pending action.
(3) If the court in which a mandatory wage assignment is sought
does not already have a copy of the support or maintenance order in the
court file, then the obligee shall attach a copy of the support or
maintenance order to the petition or motion seeking the wage
assignment.
Sec. 1032 RCW 26.18.090 and 1993 c 426 s 7 are each amended to
read as follows:
(1) The wage assignment order in RCW 26.18.080 shall include:
(a) The maximum amount of current support or ((spousal))
maintenance, if any, to be withheld from the obligor's earnings each
month, or from each earnings disbursement; and
(b) The total amount of the arrearage or reimbursement judgment
previously entered by the court, if any, together with interest, if
any.
(2) The total amount to be withheld from the obligor's earnings
each month, or from each earnings disbursement, shall not exceed fifty
percent of the disposable earnings of the obligor. If the amounts to
be paid toward the arrearage are specified in the support or
((spousal)) maintenance order, then the maximum amount to be withheld
is the sum of: Either the current support or ((spousal)) maintenance
ordered, or both; and the amount ordered to be paid toward the
arrearage, or fifty percent of the disposable earnings of the obligor,
whichever is less.
(3) The provisions of RCW 6.27.150 do not apply to wage assignments
for child support or ((spousal)) maintenance authorized under this
chapter, but fifty percent of the disposable earnings of the obligor
are exempt, and may be disbursed to the obligor.
(4) If an obligor is subject to two or more attachments for child
support on account of different obligees, the employer shall, if the
nonexempt portion of the obligor's earnings is not sufficient to
respond fully to all the attachments, apportion the obligor's nonexempt
disposable earnings between or among the various obligees equally. Any
obligee may seek a court order reapportioning the obligor's nonexempt
disposable earnings upon notice to all interested obligees. Notice
shall be by personal service, or in the manner provided by the civil
rules of superior court or applicable statute.
(5) If an obligor is subject to two or more attachments for
((spousal)) maintenance on account of different obligees, the employer
shall, if the nonexempt portion of the obligor's earnings is not
sufficient to respond fully to all the attachments, apportion the
obligor's nonexempt disposable earnings between or among the various
obligees equally. An obligee may seek a court order reapportioning the
obligor's nonexempt disposable earnings upon notice to all interested
obligees. Notice shall be by personal service, or in the manner
provided by the civil rules of superior court or applicable statute.
Sec. 1033 RCW 26.18.100 and 1998 c 77 s 1 are each amended to
read as follows:
The wage assignment order shall be substantially in the following
form:
WHETHER OR NOT YOU OWE ANYTHING TO THE OBLIGOR, YOUR FAILURE TO ANSWER AS REQUIRED MAY MAKE YOU LIABLE FOR THE AMOUNT OF SUPPORT MONEYS THAT SHOULD HAVE BEEN WITHHELD FROM THE OBLIGOR'S EARNINGS OR SUBJECT TO CONTEMPT OF COURT.
| . . . . . . . . . . . . | . . . . . . . . . . . . |
| Obligee, | Judge/Court Commissioner |
| or obligee's attorney | |
| Send withheld payments to: | . . . . . . . . . . . . |
| . . . . . . . . . . . . | |
| . . . . . . . . . . . . | |
| . . . . . . . . . . . . |
Sec. 1034 RCW 26.18.110 and 1998 c 77 s 2 are each amended to
read as follows:
(1) An employer upon whom service of a wage assignment order has
been made shall answer the order by sworn affidavit within twenty days
after the date of service. The answer shall state whether the obligor
is employed by or receives earnings or other remuneration from the
employer, whether the employer will honor the wage assignment order,
and whether there are either multiple child support or ((spousal))
maintenance attachments, or both, against the obligor.
(2) If the employer possesses any earnings or remuneration due and
owing to the obligor, the earnings subject to the wage assignment order
shall be withheld immediately upon receipt of the wage assignment
order. The withheld earnings shall be delivered to the Washington
state support registry or, if the wage assignment order is to satisfy
a duty of ((spousal)) maintenance, to the addressee specified in the
assignment within five working days of each regular pay interval.
(3) The employer shall continue to withhold the ordered amounts
from nonexempt earnings or remuneration of the obligor until notified
by:
(a) The court that the wage assignment has been modified or
terminated; or
(b) The Washington state support registry or obligee that the
accrued child support or ((spousal)) maintenance debt has been paid,
provided the wage assignment order contains the language set forth
under RCW 26.18.100(3)(b). The employer shall promptly notify the
addressee specified in the assignment when the employee is no longer
employed. If the employer no longer employs the employee, the wage
assignment order shall remain in effect for one year after the employee
has left the employment or the employer has been in possession of any
earnings or remuneration owed to the employee, whichever is later. The
employer shall continue to hold the wage assignment order during that
period. If the employee returns to the employer's employment during
the one-year period the employer shall immediately begin to withhold
the employee's earnings or remuneration according to the terms of the
wage assignment order. If the employee has not returned within one
year, the wage assignment shall cease to have effect at the expiration
of the one-year period, unless the employer continues to owe
remuneration for employment to the obligor.
(4) The employer may deduct a processing fee from the remainder of
the employee's earnings after withholding under the wage assignment
order, even if the remainder is exempt under RCW 26.18.090. The
processing fee may not exceed (a) ten dollars for the first
disbursement made by the employer to the Washington state support
registry; and (b) one dollar for each subsequent disbursement to the
clerk.
(5) An order for wage assignment for support for a dependent child
entered under this chapter shall have priority over any other wage
assignment or garnishment, except for another wage assignment or
garnishment for child support, or order to withhold and deliver under
chapter 74.20A RCW. An order for wage assignment for spousal
maintenance entered under this chapter shall have priority over any
other wage assignment or garnishment, except for a wage assignment,
garnishment, or order to withhold and deliver under chapter 74.20A RCW
for support of a dependent child, and except for another wage
assignment or garnishment for ((spousal)) maintenance.
(6) An employer who fails to withhold earnings as required by a
wage assignment issued under this chapter may be held liable to the
obligee for one hundred percent of the support or ((spousal))
maintenance debt, or the amount of support or ((spousal)) maintenance
moneys that should have been withheld from the employee's earnings
whichever is the lesser amount, if the employer:
(a) Fails or refuses, after being served with a wage assignment
order, to deduct and promptly remit from the unpaid earnings the
amounts of money required in the order;
(b) Fails or refuses to submit an answer to the notice of wage
assignment after being served; or
(c) Is unwilling to comply with the other requirements of this
section.
Liability may be established in superior court. Awards in superior
court shall include costs, interest under RCW 19.52.020 and 4.56.110,
and reasonable attorneys' fees.
(7) No employer who complies with a wage assignment issued under
this chapter may be liable to the employee for wrongful withholding.
(8) No employer may discharge, discipline, or refuse to hire an
employee because of the entry or service of a wage assignment issued
and executed under this chapter. If an employer discharges,
disciplines, or refuses to hire an employee in violation of this
section, the employee or person shall have a cause of action against
the employer. The employer shall be liable for double the amount of
damages suffered as a result of the violation and for costs and
reasonable attorneys' fees, and shall be subject to a civil penalty of
not more than two thousand five hundred dollars for each violation.
The employer may also be ordered to hire, rehire, or reinstate the
aggrieved individual.
(9) For wage assignments payable to the Washington state support
registry, an employer may combine amounts withheld from various
employees into a single payment to the Washington state support
registry, if the payment includes a listing of the amounts attributable
to each employee and other information as required by the registry.
(10) An employer shall deliver a copy of the wage assignment order
to the obligor as soon as is reasonably possible.
Sec. 1035 RCW 26.18.120 and 1993 c 426 s 10 are each amended to
read as follows:
The answer of the employer shall be made on forms, served on the
employer with the wage assignment order, substantially as follows:
Sec. 1036 RCW 26.18.140 and 1994 c 230 s 6 are each amended to
read as follows:
(1) Except as provided in subsection (2) of this section, in a
hearing to quash, modify, or terminate the wage assignment order, the
court may grant relief only upon a showing that the wage assignment
order causes extreme hardship or substantial injustice. Satisfaction
by the obligor of all past due payments subsequent to the issuance of
the wage assignment order is not grounds to quash, modify, or terminate
the wage assignment order. If a wage assignment order has been in
operation for twelve consecutive months and the obligor's support or
((spousal)) maintenance obligation is current, the court may terminate
the order upon motion of the obligor unless the obligee can show good
cause as to why the wage assignment order should remain in effect.
(2) The court may enter an order delaying, modifying, or
terminating the wage assignment order and order the obligor to make
payments directly to the obligee as provided in RCW 26.23.050(2).
Sec. 1037 RCW 26.18.150 and 1993 c 426 s 12 are each amended to
read as follows:
(1) In any action to enforce a support or ((spousal)) maintenance
order under Title 26 RCW, the court may, in its discretion, order a
parent obligated to pay support for a minor child or person owing a
duty of ((spousal)) maintenance to post a bond or other security with
the court. The bond or other security shall be in the amount of
support or ((spousal)) maintenance due for a two-year period. The bond
or other security is subject to approval by the court. The bond shall
include the name and address of the issuer. If the bond is canceled,
any person issuing a bond under this section shall notify the court and
the person entitled to receive payment under the order.
(2) If the obligor fails to make payments as required under the
court order, the person entitled to receive payment may recover on the
bond or other security in the existing proceeding. The court may,
after notice and hearing, increase the amount of the bond or other
security. Failure to comply with the court's order to obtain and
maintain a bond or other security may be treated as contempt of court.
Sec. 1038 RCW 26.19.071 and 1997 c 59 s 4 are each amended to
read as follows:
(1) Consideration of all income. All income and resources of each
parent's household shall be disclosed and considered by the court when
the court determines the child support obligation of each parent. Only
the income of the parents of the children whose support is at issue
shall be calculated for purposes of calculating the basic support
obligation. Income and resources of any other person shall not be
included in calculating the basic support obligation.
(2) Verification of income. Tax returns for the preceding two
years and current paystubs shall be provided to verify income and
deductions. Other sufficient verification shall be required for income
and deductions which do not appear on tax returns or paystubs.
(3) Income sources included in gross monthly income. Except as
specifically excluded in subsection (4) of this section, monthly gross
income shall include income from any source, including:
(a) Salaries;
(b) Wages;
(c) Commissions;
(d) Deferred compensation;
(e) Overtime;
(f) Contract-related benefits;
(g) Income from second jobs;
(h) Dividends;
(i) Interest;
(j) Trust income;
(k) Severance pay;
(l) Annuities;
(m) Capital gains;
(n) Pension retirement benefits;
(o) Workers' compensation;
(p) Unemployment benefits;
(q) ((Spousal)) Maintenance actually received;
(r) Bonuses;
(s) Social security benefits; and
(t) Disability insurance benefits.
(4) Income sources excluded from gross monthly income. The
following income and resources shall be disclosed but shall not be
included in gross income:
(a) Income of a new spouse or new domestic partner or income of
other adults in the household;
(b) Child support received from other relationships;
(c) Gifts and prizes;
(d) Temporary assistance for needy families;
(e) Supplemental security income;
(f) General assistance; and
(g) Food stamps.
Receipt of income and resources from temporary assistance for needy
families, supplemental security income, general assistance, and food
stamps shall not be a reason to deviate from the standard calculation.
(5) Determination of net income. The following expenses shall be
disclosed and deducted from gross monthly income to calculate net
monthly income:
(a) Federal and state income taxes;
(b) Federal insurance contributions act deductions;
(c) Mandatory pension plan payments;
(d) Mandatory union or professional dues;
(e) State industrial insurance premiums;
(f) Court-ordered ((spousal)) maintenance to the extent actually
paid;
(g) Up to two thousand dollars per year in voluntary pension
payments actually made if the contributions were made for the two tax
years preceding the earlier of the (i) tax year in which the parties
separated with intent to live separate and apart or (ii) tax year in
which the parties filed for dissolution; and
(h) Normal business expenses and self-employment taxes for self-employed persons. Justification shall be required for any business
expense deduction about which there is disagreement.
Items deducted from gross income under this subsection shall not be
a reason to deviate from the standard calculation.
(6) Imputation of income. The court shall impute income to a
parent when the parent is voluntarily unemployed or voluntarily
underemployed. The court shall determine whether the parent is
voluntarily underemployed or voluntarily unemployed based upon that
parent's work history, education, health, and age, or any other
relevant factors. A court shall not impute income to a parent who is
gainfully employed on a full-time basis, unless the court finds that
the parent is voluntarily underemployed and finds that the parent is
purposely underemployed to reduce the parent's child support
obligation. Income shall not be imputed for an unemployable parent.
Income shall not be imputed to a parent to the extent the parent is
unemployed or significantly underemployed due to the parent's efforts
to comply with court-ordered reunification efforts under chapter 13.34
RCW or under a voluntary placement agreement with an agency supervising
the child. In the absence of information to the contrary, a parent's
imputed income shall be based on the median income of year-round full-time workers as derived from the United States bureau of census,
current populations reports, or such replacement report as published by
the bureau of census.
Sec. 1039 RCW 26.19.075 and 1997 c 59 s 5 are each amended to
read as follows:
(1) Reasons for deviation from the standard calculation include but
are not limited to the following:
(a) Sources of income and tax planning. The court may deviate from
the standard calculation after consideration of the following:
(i) Income of a new spouse or new domestic partner if the parent
who is married to the new spouse or in a partnership with a new
domestic partner is asking for a deviation based on any other reason.
Income of a new spouse or new domestic partner is not, by itself, a
sufficient reason for deviation;
(ii) Income of other adults in the household if the parent who is
living with the other adult is asking for a deviation based on any
other reason. Income of the other adults in the household is not, by
itself, a sufficient reason for deviation;
(iii) Child support actually received from other relationships;
(iv) Gifts;
(v) Prizes;
(vi) Possession of wealth, including but not limited to savings,
investments, real estate holdings and business interests, vehicles,
boats, pensions, bank accounts, insurance plans, or other assets;
(vii) Extraordinary income of a child; or
(viii) Tax planning considerations. A deviation for tax planning
may be granted only if the child would not receive a lesser economic
benefit due to the tax planning.
(b) Nonrecurring income. The court may deviate from the standard
calculation based on a finding that a particular source of income
included in the calculation of the basic support obligation is not a
recurring source of income. Depending on the circumstances,
nonrecurring income may include overtime, contract-related benefits,
bonuses, or income from second jobs. Deviations for nonrecurring
income shall be based on a review of the nonrecurring income received
in the previous two calendar years.
(c) Debt and high expenses. The court may deviate from the
standard calculation after consideration of the following expenses:
(i) Extraordinary debt not voluntarily incurred;
(ii) A significant disparity in the living costs of the parents due
to conditions beyond their control;
(iii) Special needs of disabled children;
(iv) Special medical, educational, or psychological needs of the
children; or
(v) Costs incurred or anticipated to be incurred by the parents in
compliance with court-ordered reunification efforts under chapter 13.34
RCW or under a voluntary placement agreement with an agency supervising
the child.
(d) Residential schedule. The court may deviate from the standard
calculation if the child spends a significant amount of time with the
parent who is obligated to make a support transfer payment. The court
may not deviate on that basis if the deviation will result in
insufficient funds in the household receiving the support to meet the
basic needs of the child or if the child is receiving temporary
assistance for needy families. When determining the amount of the
deviation, the court shall consider evidence concerning the increased
expenses to a parent making support transfer payments resulting from
the significant amount of time spent with that parent and shall
consider the decreased expenses, if any, to the party receiving the
support resulting from the significant amount of time the child spends
with the parent making the support transfer payment.
(e) Children from other relationships. The court may deviate from
the standard calculation when either or both of the parents before the
court have children from other relationships to whom the parent owes a
duty of support.
(i) The child support schedule shall be applied to the mother,
father, and children of the family before the court to determine the
presumptive amount of support.
(ii) Children from other relationships shall not be counted in the
number of children for purposes of determining the basic support
obligation and the standard calculation.
(iii) When considering a deviation from the standard calculation
for children from other relationships, the court may consider only
other children to whom the parent owes a duty of support. The court
may consider court-ordered payments of child support for children from
other relationships only to the extent that the support is actually
paid.
(iv) When the court has determined that either or both parents have
children from other relationships, deviations under this section shall
be based on consideration of the total circumstances of both
households. All child support obligations paid, received, and owed for
all children shall be disclosed and considered.
(2) All income and resources of the parties before the court, new
spouses or new domestic partners, and other adults in the households
shall be disclosed and considered as provided in this section. The
presumptive amount of support shall be determined according to the
child support schedule. Unless specific reasons for deviation are set
forth in the written findings of fact and are supported by the
evidence, the court shall order each parent to pay the amount of
support determined by using the standard calculation.
(3) The court shall enter findings that specify reasons for any
deviation or any denial of a party's request for any deviation from the
standard calculation made by the court. The court shall not consider
reasons for deviation until the court determines the standard
calculation for each parent.
(4) When reasons exist for deviation, the court shall exercise
discretion in considering the extent to which the factors would affect
the support obligation.
(5) Agreement of the parties is not by itself adequate reason for
any deviations from the standard calculation.
Sec. 1040 RCW 26.20.035 and 2002 c 331 s 7 are each amended to
read as follows:
(1) Except as provided in subsection (2) of this section, any
person who is able to provide support, or has the ability to earn the
means to provide support, and who:
(a) Willfully omits to provide necessary food, clothing, shelter,
or medical attendance to a child dependent upon him or her; or
(b) Willfully omits to provide necessary food, clothing, shelter,
or medical attendance to his or her spouse or his or her domestic
partner,
is guilty of the crime of family nonsupport.
(2) A parent of a newborn who transfers the newborn to a qualified
person at an appropriate location pursuant to RCW 13.34.360 is not
subject to criminal liability under this section.
(3) The crime of family nonsupport is a gross misdemeanor under
chapter 9A.20 RCW.
Sec. 1041 RCW 26.20.071 and 1963 c 10 s 1 are each amended to
read as follows:
In any proceedings relating to nonsupport or family desertion the
laws attaching a privilege against the disclosure of communications
between ((husband and wife)) spouses or domestic partners shall be
inapplicable and both ((husband and wife)) spouses or domestic partners
in such proceedings shall be competent witnesses to testify to any
relevant matter, including marriage, domestic partnership, and
parentage.
Sec. 1042 RCW 26.20.080 and 1984 c 260 s 28 are each amended to
read as follows:
Proof of the nonsupport of a spouse or domestic partner or of a
child or children, or the omission to furnish necessary food, clothing,
shelter, or medical attendance for a spouse or domestic partner, or for
a child or children, is prima facie evidence that the nonsupport or
omission to furnish food, clothing, shelter, or medical attendance is
wilful. The provisions of RCW 26.20.030 and 26.20.035 are applicable
regardless of the marital or domestic partnership status of the person
who has a child dependent upon him or her, and regardless of the
nonexistence of any decree requiring payment of support or maintenance.
Sec. 1043 RCW 26.21A.010 and 2002 c 198 s 102 are each amended to
read as follows:
In this chapter:
(1) "Child" means an individual, whether over or under the age of
majority, who is or is alleged to be owed a duty of support by the
individual's parent or who is or is alleged to be the beneficiary of a
support order directed to the parent.
(2) "Child support order" means a support order for a child,
including a child who has attained the age of majority under the law of
the issuing state.
(3) "Duty of support" means an obligation imposed or imposable by
law to provide support for a child, spouse, domestic partner, former
domestic partner, or former spouse, including an unsatisfied obligation
to provide support.
(4) "Home state" means the state in which a child lived with a
parent or a person acting as parent for at least six consecutive months
immediately preceding the time of filing of a petition or comparable
pleading for support and, if a child is less than six months old, the
state in which the child lived from birth with any of them. A period
of temporary absence of any of them is counted as part of the six-month
or other period.
(5) "Income" includes earnings or other periodic entitlements to
money from any source and any other property subject to withholding for
support under the law of this state.
(6) "Income-withholding order" means an order or other legal
process directed to an obligor's employer or other debtor, as defined
by RCW 50.04.080, to withhold support from the income of the obligor.
(7) "Initiating state" means a state from which a proceeding is
forwarded or in which a proceeding is filed for forwarding to a
responding state under this chapter or a law or procedure substantially
similar to this chapter.
(8) "Initiating tribunal" means the authorized tribunal in an
initiating state.
(9) "Issuing state" means the state in which a tribunal issues a
support order or renders a judgment determining parentage.
(10) "Issuing tribunal" means the tribunal that issues a support
order or renders a judgment determining parentage.
(11) "Law" includes decisional and statutory law and rules having
the force of law.
(12) "Obligee" means:
(a) An individual to whom a duty of support is or is alleged to be
owed or in whose favor a support order has been issued or a judgment
determining parentage has been rendered;
(b) A state or political subdivision to which the rights under a
duty of support or support order have been assigned or which has
independent claims based on financial assistance provided to an
individual obligee; or
(c) An individual seeking a judgment determining parentage of the
individual's child.
(13) "Obligor" means an individual, or the estate of a decedent:
(a) Who owes or is alleged to owe a duty of support;
(b) Who is alleged but has not been adjudicated to be a parent of
a child; or
(c) Who is liable under a support order.
(14) "Person" means: An individual, corporation, business trust,
estate, trust, partnership, limited liability company, association,
joint venture, government; governmental subdivision, agency, or
instrumentality; public corporation; or any other legal or commercial
entity.
(15) "Record" means information that is inscribed on a tangible
medium or that is stored in an electronic or other medium and is
retrievable in perceivable form.
(16) "Register" means to record or file a support order or judgment
determining parentage in the appropriate location for the recording or
filing of foreign judgments generally or foreign support orders
specifically.
(17) "Registering tribunal" means a tribunal in which a support
order is registered.
(18) "Responding state" means a state in which a proceeding is
filed or to which a proceeding is forwarded for filing from an
initiating state under this chapter or a law or procedure substantially
similar to this chapter.
(19) "Responding tribunal" means the authorized tribunal in a
responding state.
(20) "Spousal or domestic partner support order" means a support
order for a spouse or domestic partner or former domestic partner or
former spouse of the obligor.
(21) "State" means a state of the United States, the District of
Columbia, Puerto Rico, the United States Virgin Islands, or any
territory or insular possession subject to the jurisdiction of the
United States. The term includes:
(a) An Indian tribe; and
(b) A foreign country or political subdivision that:
(i) Has been declared to be a foreign reciprocating country or
political subdivision under federal law;
(ii) Has established a reciprocal arrangement for child support
with this state as provided in RCW 26.21A.235; or
(iii) Has enacted a law or established procedures for issuance and
enforcement of support orders which are substantially similar to the
procedures under this chapter.
(22) "Support enforcement agency" means a public official or agency
authorized to seek:
(a) Enforcement of support orders or laws relating to the duty of
support;
(b) Establishment or modification of child support;
(c) Determination of parentage;
(d) Location of obligors or their assets; or
(e) Determination of the controlling child support order.
(23) "Support order" means a judgment, decree, order, or directive,
whether temporary, final, or subject to modification, issued by a
tribunal for the benefit of a child, a spouse or domestic partner, or
a former spouse or former domestic partner, that provides for monetary
support, health care, arrearages, or reimbursement, and may include
related costs and fees, interest, income withholding, attorneys' fees,
and other relief.
(24) "Tribunal" means a court, administrative agency, or quasi-judicial entity authorized to establish, enforce, or modify support
orders or to determine parentage.
Sec. 1044 RCW 26.21A.150 and 2002 c 198 s 211 are each amended to
read as follows:
(1) A tribunal of this state issuing a spousal or domestic partner
support order consistent with the law of this state has continuing,
exclusive jurisdiction to modify the spousal or domestic partner
support order throughout the existence of the support obligation.
(2) A tribunal of this state may not modify a spousal or domestic
partner support order issued by a tribunal of another state having
continuing, exclusive jurisdiction over that order under the law of
that state.
(3) A tribunal of this state that has continuing, exclusive
jurisdiction over a spousal or domestic partner support order may serve
as:
(a) An initiating tribunal to request a tribunal of another state
to enforce the spousal or domestic partner support order issued in this
state; or
(b) A responding tribunal to enforce or modify its own spousal or
domestic partner support order.
Sec. 1045 RCW 26.21A.275 and 2002 c 198 s 316 are each amended to
read as follows:
(1) The physical presence of a nonresident party who is an
individual in a tribunal of this state is not required for the
establishment, enforcement, or modification of a support order or the
rendition of a judgment determining parentage.
(2) An affidavit, a document substantially complying with federally
mandated forms, or a document incorporated by reference in any of them,
that would not be excluded under the hearsay rule if given in person,
is admissible in evidence if given under penalty of perjury by a party
or witness residing in another state.
(3) A copy of the record of child support payments certified as a
true copy of the original by the custodian of the record may be
forwarded to a responding tribunal. The copy is evidence of facts
asserted in it, and is admissible to show whether payments were made.
(4) Copies of bills for testing for parentage, and for prenatal and
postnatal health care of the mother and child, furnished to the adverse
party at least ten days before trial, are admissible in evidence to
prove the amount of the charges billed and that the charges were
reasonable, necessary, and customary.
(5) Documentary evidence transmitted from another state to a
tribunal of this state by telephone, telecopier, or other means that do
not provide an original record may not be excluded from evidence on an
objection based on the means of transmission.
(6) In a proceeding under this chapter, a tribunal of this state
shall permit a party or witness residing in another state to be deposed
or to testify under penalty of perjury by telephone, audiovisual means,
or other electronic means at a designated tribunal or other location in
that state. A tribunal of this state shall cooperate with tribunals of
other states in designating an appropriate location for the deposition
or testimony.
(7) If a party called to testify at a civil hearing refuses to
answer on the ground that the testimony may be self-incriminating, the
trier of fact may draw an adverse inference from the refusal.
(8) A privilege against disclosure of communications between
spouses or domestic partners does not apply in a proceeding under this
chapter.
(9) The defense of immunity based on the relationship of ((husband
and wife)) spouses or relationship of domestic partners or parent and
child does not apply in a proceeding under this chapter.
(10) A voluntary acknowledgment of paternity, certified as a true
copy, is admissible to establish parentage of the child.
Sec. 1046 RCW 26.09.015 and 2007 c 496 s 602 are each amended to
read as follows:
(1) In any proceeding under this chapter, the matter may be set for
mediation of the contested issues before or concurrent with the setting
of the matter for hearing. The purpose of the mediation proceeding
shall be to reduce acrimony which may exist between the parties and to
develop an agreement assuring the child's close and continuing contact
with both parents after the marriage or the domestic partnership is
dissolved. The mediator shall use his or her best efforts to effect a
settlement of the dispute.
(2) Each superior court may make available a mediator. The
mediator may be a member of the professional staff of a family court or
mental health services agency, or may be any other person or agency
designated by the court. In order to provide mediation services, the
court is not required to institute a family court.
(3)(a) Mediation proceedings under this chapter shall be governed
in all respects by chapter 7.07 RCW, except as follows:
(i) Mediation communications in postdecree mediations mandated by
a parenting plan are admissible in subsequent proceedings for the
limited purpose of proving:
(A) Abuse, neglect, abandonment, exploitation, or unlawful
harassment as defined in RCW 9A.46.020(1), of a child;
(B) Abuse or unlawful harassment as defined in RCW 9A.46.020(1), of
a family or household member as defined in RCW 26.50.010(2); or
(C) That a parent used or frustrated the dispute resolution process
without good reason for purposes of RCW 26.09.184(4)(d).
(ii) If a postdecree mediation-arbitration proceeding is required
pursuant to a parenting plan and the same person acts as both mediator
and arbitrator, mediation communications in the mediation phase of such
a proceeding may be admitted during the arbitration phase, and shall be
admissible in the judicial review of such a proceeding under RCW
26.09.184(4)(e) to the extent necessary for such review to be
effective.
(b) None of the exceptions under (a)(i) and (ii) of this subsection
shall subject a mediator to compulsory process to testify except by
court order for good cause shown, taking into consideration the need
for the mediator's testimony and the interest in the mediator
maintaining an appearance of impartiality. If a mediation
communication is not privileged under (a)(i) of this subsection or that
portion of (a)(ii) of this subsection pertaining to judicial review,
only the portion of the communication necessary for the application of
the exception may be admitted, and such admission of evidence shall not
render any other mediation communication discoverable or admissible
except as may be provided in chapter 7.07 RCW.
(4) The mediator shall assess the needs and interests of the child
or children involved in the controversy and may interview the child or
children if the mediator deems such interview appropriate or necessary.
(5) Any agreement reached by the parties as a result of mediation
shall be reported to the court and to counsel for the parties by the
mediator on the day set for mediation or any time thereafter designated
by the court.
Sec. 1047 RCW 26.09.015 and 2007 c 496 s 602 and 2007 c 496 s 501
are each reenacted and amended to read as follows:
(1) In any proceeding under this chapter, the matter may be set for
mediation of the contested issues before or concurrent with the setting
of the matter for hearing. The purpose of the mediation proceeding
shall be to reduce acrimony which may exist between the parties and to
develop an agreement assuring the child's close and continuing contact
with both parents after the marriage or the domestic partnership is
dissolved. The mediator shall use his or her best efforts to effect a
settlement of the dispute.
(2)(a) Each superior court may make available a mediator. The
court shall use the most cost-effective mediation services that are
readily available unless there is good cause to access alternative
providers. The mediator may be a member of the professional staff of
a family court or mental health services agency, or may be any other
person or agency designated by the court. In order to provide
mediation services, the court is not required to institute a family
court.
(b) In any proceeding involving issues relating to residential time
or other matters governed by a parenting plan, the matter may be set
for mediation of the contested issues before or concurrent with the
setting of the matter for hearing. Counties may, and to the extent
state funding is provided therefor counties shall, provide both
predecree and postdecree mediation at reduced or waived fee to the
parties within one year of the filing of the dissolution petition.
(3)(a) Mediation proceedings under this chapter shall be governed
in all respects by chapter 7.07 RCW, except as follows:
(i) Mediation communications in postdecree mediations mandated by
a parenting plan are admissible in subsequent proceedings for the
limited purpose of proving:
(A) Abuse, neglect, abandonment, exploitation, or unlawful
harassment as defined in RCW 9A.46.020(1), of a child;
(B) Abuse or unlawful harassment as defined in RCW 9A.46.020(1), of
a family or household member as defined in RCW 26.50.010(2); or
(C) That a parent used or frustrated the dispute resolution process
without good reason for purposes of RCW 26.09.184(4)(d).
(ii) If a postdecree mediation-arbitration proceeding is required
pursuant to a parenting plan and the same person acts as both mediator
and arbitrator, mediation communications in the mediation phase of such
a proceeding may be admitted during the arbitration phase, and shall be
admissible in the judicial review of such a proceeding under RCW
26.09.184(4)(e) to the extent necessary for such review to be
effective.
(b) None of the exceptions under (a)(i) and (ii) of this subsection
shall subject a mediator to compulsory process to testify except by
court order for good cause shown, taking into consideration the need
for the mediator's testimony and the interest in the mediator
maintaining an appearance of impartiality. If a mediation
communication is not privileged under (a)(i) of this subsection or that
portion of (a)(ii) of this subsection pertaining to judicial review,
only the portion of the communication necessary for the application of
the exception may be admitted, and such admission of evidence shall not
render any other mediation communication discoverable or admissible
except as may be provided in chapter 7.07 RCW.
(4) The mediator shall assess the needs and interests of the child
or children involved in the controversy and may interview the child or
children if the mediator deems such interview appropriate or necessary.
(5) Any agreement reached by the parties as a result of mediation
shall be reported to the court and to counsel for the parties by the
mediator on the day set for mediation or any time thereafter designated
by the court.
Sec. 1048 RCW 26.09.194 and 1987 c 460 s 13 are each amended to
read as follows:
(1) A parent seeking a temporary order relating to parenting shall
file and serve a proposed temporary parenting plan by motion. The
other parent, if contesting the proposed temporary parenting plan,
shall file and serve a responsive proposed parenting plan. Either
parent may move to have a proposed temporary parenting plan entered as
part of a temporary order. The parents may enter an agreed temporary
parenting plan at any time as part of a temporary order. The proposed
temporary parenting plan may be supported by relevant evidence and
shall be accompanied by an affidavit or declaration which shall state
at a minimum the following:
(a) The name, address, and length of residence with the person or
persons with whom the child has lived for the preceding twelve months;
(b) The performance by each parent during the last twelve months of
the parenting functions relating to the daily needs of the child;
(c) The parents' work and child-care schedules for the preceding
twelve months;
(d) The parents' current work and child-care schedules; and
(e) Any of the circumstances set forth in RCW 26.09.191 that are
likely to pose a serious risk to the child and that warrant limitation
on the award to a parent of temporary residence or time with the child
pending entry of a permanent parenting plan.
(2) At the hearing, the court shall enter a temporary parenting
order incorporating a temporary parenting plan which includes:
(a) A schedule for the child's time with each parent when
appropriate;
(b) Designation of a temporary residence for the child;
(c) Allocation of decision-making authority, if any. Absent
allocation of decision-making authority consistent with RCW
26.09.187(2), neither party shall make any decision for the child other
than those relating to day-to-day or emergency care of the child, which
shall be made by the party who is present with the child;
(d) Provisions for temporary support for the child; and
(e) Restraining orders, if applicable, under RCW 26.09.060.
(3) A parent may make a motion for an order to show cause and the
court may enter a temporary order, including a temporary parenting
plan, upon a showing of necessity.
(4) A parent may move for amendment of a temporary parenting plan,
and the court may order amendment to the temporary parenting plan, if
the amendment conforms to the limitations of RCW 26.09.191 and is in
the best interest of the child.
(5) If a proceeding for dissolution of marriage or dissolution of
domestic partnership, legal separation, or declaration of invalidity is
dismissed, any temporary order or temporary parenting plan is vacated.
Sec. 1049 RCW 26.12.172 and 1994 c 267 s 5 are each amended to
read as follows:
Any court rules adopted for the implementation of parenting
seminars shall include the following provisions:
(1) In no case shall opposing parties be required to attend
seminars together;
(2) Upon a showing of domestic violence or abuse which would not
require mutual decision making pursuant to RCW 26.09.191, or that a
parent's attendance at the seminar is not in the children's best
interests, the court shall either:
(a) Waive the requirement of completion of the seminar; or
(b) Provide an alternative, voluntary parenting seminar for
battered spouses or battered domestic partners; and
(3) The court may waive the seminar for good cause.
Sec. 1050 RCW 26.12.260 and 2007 c 496 s 201 are each amended to
read as follows:
(1) After July 1, 2009, but no later than November 1, 2009, a
county may, and to the extent state funding is provided to meet the
minimum requirements of the program a county shall, create a program to
provide services to all parties involved in proceedings under chapter
26.09 RCW. Minimum components of this program shall include: (a) An
individual to serve as an initial point of contact for parties filing
petitions for dissolutions or legal separations under chapter 26.09
RCW; (b) informing parties about courthouse facilitation programs and
orientations; (c) informing parties of alternatives to filing a
dissolution petition, such as marriage or domestic partnership
counseling; (d) informing parties of alternatives to litigation
including counseling, legal separation, and mediation services if
appropriate; (e) informing parties of supportive family services
available in the community; (f) screening for referral for services in
the areas of domestic violence as defined in RCW 26.50.010, child
abuse, substance abuse, and mental health; and (g) assistance to the
court in superior court cases filed under chapter 26.09 RCW.
(2) This program shall not provide legal advice. No attorney-client relationship or privilege is created, by implication or by
inference, between persons providing basic information under this
section and the participants in the program.
(3) The legislative authority of any county may impose user fees or
may impose a surcharge of up to twenty dollars on only those superior
court cases filed under this title, or both, to pay for the expenses of
this program. Fees collected under this section shall be collected and
deposited in the same manner as other county funds are collected and
deposited, and shall be maintained in a separate account to be used as
provided in this section. The program shall provide services to
indigent persons at no expense.
(4) Persons who implement the program shall be appointed in the
same manner as investigators, stenographers, and clerks as described in
RCW 26.12.050.
(5) If the county has a program under this section, any petition
under RCW 26.09.020 must allege that the moving party met and conferred
with the program prior to the filing of the petition.
(6) If the county has a program under this section, parties shall
meet and confer with the program prior to participation in mediation
under RCW 26.09.016.
NEW SECTION. Sec. 1101 A new section is added to chapter 26.60
RCW to read as follows:
A legal union of two persons of the same sex, other than a
marriage, that was validly formed in another jurisdiction, and that is
substantially equivalent to a domestic partnership under this chapter,
shall be recognized as a valid domestic partnership in this state
regardless of whether it bears the name domestic partnership.
NEW SECTION. Sec. 1201 A new section is added to chapter 26.60
RCW to read as follows:
Whenever the term "domestic partnership" is used in the Revised
Code of Washington it shall be defined to mean "state registered
domestic partnership" and whenever the term "domestic partner" is used
in the Revised Code of Washington it shall be defined to mean "state
registered domestic partner."
NEW SECTION. Sec. 1301 Part headings used in this act are not
any part of the law.
NEW SECTION. Sec. 1302 If any provision of this act or its
application to any person or circumstance is held invalid, the
remainder of the act or the application of the provision to other
persons or circumstances is not affected.
NEW SECTION. Sec. 1303 By January 1, 2009, affected agencies
shall adopt rules to implement the provisions of this act.
NEW SECTION. Sec. 1304 Section 1046 of this act expires January
1, 2009.
NEW SECTION. Sec. 1305 Section 1047 of this act takes effect
January 1, 2009.
NEW SECTION. Sec. 1306 Section 1050 of this act takes effect
July 1, 2009.