Bulletin: ID2008002

Dear Associates:

Effective July 1, 2008, Idaho's Legislature has provided for an estate of community property with right of survivorship ("CPWROS") among husband and wife. Idaho Code §§ 15-6-401, -402. An estate of CPWROS shall transfer to the surviving spouse upon the death of the other spouse. An estate of CPWROS is created by conveyance to a husband and wife where that conveyance expressly declares title is held as CPWROS. It can also be created by a husband and wife in a conveyance to themselves declaring CPWROS. The right of survivorship under CPWROS can be extinguished by recording, in the office of the recorder of the county where the property is located, an affidavit entitled "affidavit terminating right of survivorship," executed by either spouse under oath setting forth 1) an intent to terminate the survivorship right; 2) a description of the instrument creating the survivorship right including the date and recording information; and 3) the legal description of the real property affected. Divorce or annulment of the marriage of the parties severs the estate of CPWROS and transforms it into a tenancy in common unless otherwise ordered by the divorce court.

The conveyance after the death of a spouse is by operation of law. Therefore you need to review a certified copy of a death certificate to vest title in the surviving spouse. You must also confirm that your county assessor has or will change the tax assessment deleting the deceased spouse from the assessment without requiring a probate action.

For on-line viewing of this and other bulletins, please log onto www.vuwriter.com.