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Abstract

This Article will assess the effect of living separate and apart in a defunct marriage on the typical community property agreement, including both inter-vivos and at-death elements. First, as background, this Article will explain and analyze the Washington law status of the concept of living separate and apart. Second, this Article will then review the facts and the holding of In re Estate of Lyman, an appeals court case illustrating the typical fact situation and setting forth the approach of the Washington Supreme Court in this area. It remains the best and most instructive example to date of this issue. Third, the Article will discuss the general contract law concept of implying an omitted contract term when it appears that policy and efficiency dictate that such a term be implied. Fourth, the Article will suggest implying a term of termination in community property agreements upon permanent separation, analogizing to the law of acquisitions while living separate and apart. Finally, the Article explores the policy benefits of implying such a term in community property agreements. The treatment the law gives to property acquisitions by spouses while living separate and apart provides the basic policy support for the implication of an omitted term in community property agreements. Since that policy likely reflects what most permanently separated spouses would want, it is also likely to reflect the intent of most spouses with respect to the validity of community property agreements during permanent separation. Therefore, this Article concludes that a term should be implied in each community property agreement terminating such agreements upon a permanent separation.

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