take effect at the death of either. Such an agreement may be made at any time by the husband and wife by the execution of an instrument in writing under seal, executed as required for deeds, and may be altered or amended in like manner, provided rights of creditors are protected (sec. 26.16.120).

A husband, as the statutory agent of the community and manager of community personal property, may enter into partnership without the consent of his wife.13

A wife's interest in community property is not a contingent or expected interest. She has a present, existing, undivided one-half interest in and to community property during the lifetime of her husband.11 The interest of the respective spouses in community property is separate and distinct from the separate estate of each.15 The character of separate or community property is determined by considering the sources from which the property was acquired; the intention of the parties and acts expressive of their intention; the extent, effect, and result of commingling of property; and the ease or difficulty of tracing, identifying, and segregating property."

16

The separate or community character of property may be changed by deed, by agreement between the parties, by operation of law, or by some form of estoppel (that is, some act of the parties or their failure to act).17

When a wife's personal earnings are community property, they are not exempt from execution on a judgment against the community.

18

Separate property of a member of the marital community and income therefrom remain separate property during the marriage, but when separate funds are commingled with community property so that it is impossible to distinguish between the two, all such funds become community property.19

A wife is not personally liable for a community contract made by her husband.20 A separate judgment against the husband does not become a lien against the community property of husband and wife.21

When spouses indicate by their conduct that they no longer have the will to continue the marital union, neither may reap the benefits of community property laws to which they would be entitled had

13 Fields et al. v. Andrus (1944), 20 Wash. (2d) 452; 148 Pac. (2d) 313.

14 In re Coffey's Estate (1938), 195 Wash. 379; 81 Pac. (2d) 283.

15 Stafford v. Stafford (1941), 10 Wash. (2d) 649; 117 Pac. (2d) 753.

16 State ex rel. Van Moss v. Sailors, Mayor, et al. (1934), 180 Wash. 269; 39 Pac. (2d) 397.

17 In re Madsen's Estate (1956), 48 Wash. (2d) 675; 296 Pac. (2d) 518.

18 Fisher v. Marsh et al. (1912), 69 Wash. 570; 125 Pac. 951.

19 In re Allen's Estate (1959), 54 Wash. (2d) 616; 343 Pac. (2d) 867.

20 Cunningham v. Zane (1926), 139 Wash. 176; 245 Pac. 913.

21 Stafford v. Stafford (1941), 10 Wash. (2d) 649; 117 Pac. (2d) 753.

their community relationship remained undisturbed and, conversely, the innocent spouse cannot be penalized by torts of the offending spouse.22

Joint tenancy

A husband and wife may create a joint tenancy or a form of co-ownership in community or other property owned by them, 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 a joint tenancy, provided such transfer shall not take away from the rights of creditors. Such joint tenancy has the rights of survivorship and severability as at common law, and is created only by a written agreement, transfer, deed, will, or other instrument of conveyance which expressly states that it is a joint tenancy (sec. 64.28.010).

Every interest created in favor of two or more persons in their own right is an interest in common, unless: (a) acquired by them in partnership, for partnership purposes; (b) declared in its creation to be a joint tenancy, as provided in sec. 64.28.010; (c) acquired as community property; or (d) acquired by executors or trustees (sec. 64.28.020).

These provisions 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 to make agreements as provided by statute (sec. 64.28.030).

11. Damages for injury to person, property, or character

Husband and wife may join in all causes of action arising from injuries to the person or character of either or both, or from injuries to the property of either or both of them. If a husband and wife are sued together, the wife may defend for her own right, and if the husband neglects to defend, she may defend for his right also. She may defend in all cases in which she is interested, whether or not she is sued with her husband (sec. 4.08.040).

In an action by a married woman for damages for personal injuries, the husband is a necessary party to the suit if the right of action arises during the existence of the community between the spouses.23

A married woman may bring an action alone for alienation of her husband's affections regardless of whether any damages recovered would become community or separate property.24

22 Mackenzie et al. v. Sellner (1961), 158 Wash. Dec. 90; 361 Pac. (2d) 165.

23 Schneider v. Biberger (1913), 76 Wash. 504; 136 Pac. 701.

24 Stevens v. Depue (1929), 151 Wash. 641; 276 Pac. 882.

A married woman living separately and apart from her husband may sue in her own name for a personal injury negligently inflicted on her 25

An unmarried female over 21 years of age may maintain an action for her own seduction and recover damages, but the prosecution of an action to judgment by her father, mother, or guardian is a bar to an action by her (sec. 4.24.030).

If a married woman is a party to a suit, her husband must be joined with her, except that she may sue or be sued alone when: (a) the action concerns her separate property, or her right of claim to the homestead property; (b) the action is between herself and her husband; or (c) she is living separate and apart from her husband (sec. 4.08,030).

It is no defense for a married woman charged with the commission of a crime that the alleged crime committed by her was committed in the presence of her husband (sec. 9.01.113).

Damages may be recovered from a married woman for all injuries committed by her, and her husband is not responsible therefor, except where he would be jointly responsible with her if the marriage did not exist (sec. 26.16.190).

12. Damages for injury by spouse to person or property

Neither husband nor wife has the right to sue the other for a tort committed by one upon the other during the marriage.26

13. Competency of husband or wife to testify for or against each other

Neither spouse may testify for or against the other without the other's consent; nor can either be examined as to private communications between them during the marriage without the consent of the other. This exception does not apply, however, to a civil action or proceeding by one against the other, nor to a criminal proceeding for a crime committed by one against the other (sec. 5.60.060).

Husband and wife are competent witnesses for or against each other with respect to privileged communications between them in prosecutions under the abandonment or nonsupport statutes, and they may testify to any relevant matter, including marriage and parentage (Ch. 10, Laws 1963).

Laws attaching a privilege against the disclosure of communications between husband and wife are inapplicable to proceedings under the Uniform Reciprocal Enforcement of Support Act. In such proceedings, husband and wife are competent witnesses and may be com

25 Horton v. City of Seattle (1909), 53 Wash. 316; 101 Pac. 1091. 26 Schultz v. Christopher (1911), 65 Wash. 496; 118 Pac. 629.

pelled to testify to any relevant matter, including marriage and parentage (sec. 26.21.170).

14. Right to dispose of separate property by will

Every person of sound mind who has attained 21 years of age, or who has legally married and has attained the age of 18 years, or who has attained 18 years and is actively engaged with the Armed Forces of the United States or employed on a vessel of the U.S. merchant marine may will all of his or her real and personal estate (sec. 11.12.010). His or her estate includes all of the separate estate owned by the testator, together with one-half the community estate existing at the date of death (secs. 11.04.050, 26.16.010, 26.16.020).

If after making a will the testator marries and the spouse is living at the time of the testator's death, such will is revoked unless provision has been made for the survivor by marriage settlement or unless such survivor is provided for in the will or mentioned therein so as to show an intention not to make such provision. A divorce subsequent to the making of a will revokes the will as to the divorced spouse (sec. 11.12.050).

15. Inheritance rights in deceased spouse's estate

The estates by dower and curtesy do not exist (sec. 11.04.060). Disposition of separate property

Real property

The separate real property of an owner-spouse descends, upon the owner's death intestate and after payment of debts, to the surviving spouse as follows:

(a) One-half, if only one child or the lawful issue of one child are living.

(b) One-third, if more than one child, or one child and the lawful issue of one or more deceased children, are living.

(c) One-half, if no issue survive and the decedent's father and mother, or either, are living.

(d) One-half, if no issue nor parent survive but there are brothers and sisters of the decedent, or any children of deceased brothers or sisters.

(e) All, if no issue nor father, mother, sister, brother, nephew, or niece of the decedent survive (sec. 11.04.020).

Personal property

After allowances for family maintenance and for payment of the debts and charges of settling the estate, the residue, if any, of the personal property not disposed of by will is distributed as follows: If

the intestate left a spouse and issue, the spouse is entitled to one-half; if no issue survive, the living spouse takes the whole residue (sec. 11.04.030).

Disposition of community property

All property acquired after marriage by either husband or wife or both, other than separate property, is community property (sec. 26.16.030).

Upon the death of either husband or wife, one-half of the community property, subject to the community debts, goes to the surviving spouse; the other half, subject also to the community debts, is distributed according to the testamentary disposition of the deceased spouse. If no will was made, it descends equally to the legitimate issue of either or both. If no issue nor their descendants survive, then this share also goes to the surviving spouse, subject to community debts, family allowance, and charges and expenses of administration (sec. 11.04.050).

A surviving spouse is entitled to administer the community property notwithstanding any provisions of the will to the contrary, if the court finds the spouse to be otherwise qualified. Failure to make application for appointment within 40 days following the decedent's death is considered a waiver of the right of administration (sec. 11.28.030). 16. Provisions for survivors during administration of estate

If a widow accepts the provisions of her husband's will, or if he has died intestate, she is allowed all articles of her apparel or ornament, according to the degree and estate of her husband, together with provisions and other necessaries for herself and the family under her care (sec. 11.04.030, 11.52.024, 11.52.040).

If no homestead has been claimed, a surviving spouse is entitled to have awarded to him or her property of the estate, either community or separate, of not more than $6,000 in value in lieu of the homestead (sec. 11.52.010); but the award in lieu of homestead shall lie in the discretion of the court if it appears to the court that either (a) there are minor or incompetent children of the deceased by a former marriage or by adoption prior to the marriage, or (b) the petitioning spouse abandoned his or her minor children or wrongfully failed to provide for them, or (c) the surviving spouse is entitled to receive life insurance on the deceased spouse in the sum of $5,000 or more (sec. 11.52.022).

If the homestead selected has a net value of less than $6,000, the surviving spouse is entitled to have additional property of the estate awarded so that, taken with the homestead, the entire statutory allowance of $6,000 is made (sec. 11.52.022).