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November 6, 1970
Honorable Dale E. Hoggins
State Representative, 21st District
21826 95th Avenue W.
Edmonds, Washington 98020
Cite as: AGLO 1970 No. 142
This is written in response to your recent letter requesting our advice as to the applicability of RCW 36.24.175 (codifying § 3, chapter 259, Laws of 1969, Ex. Sess.), in terms of the qualification of a particular individual for the office of county coroner in one of the counties affected by this statute, where the individual's previous ownership interest in a funeral home or mortuary has been transferred from him to his wife.
The statute in question, which was considered in some detail in AGO 1970 No. 19 [[to Jonathan Whetzel, State Representative on August 10, 1970]], copy enclosed, reads as follows:
"In class AA, class A, first, second and third class counties no person shall be qualified for the office of county coroner as provided for in RCW 36.16.030 who is an owner or employee of any funeral home or mortuary." (Emphasis supplied.)
As we read this statute, it serves to disqualify for the office of county coroner in the classes of counties mentioned any person who is "an owner" (or an "employee") of any funeral home or mortuary. Therefore, the statute is clearly applicable where a married man has an ownership interest in a mortuary, either as his separate property or as a part of the community estate. See, RCW 26.16.010 (separate property of husband) and RCW 26.16.030 (community property). However, if the only ownership interest in question has legitimately and validly been made the separate property of the wife, within the contemplation of RCW 26.16.020, then the husband would no longer be in any sense the owner thereof within the purview of the above quoted disqualifying statute. Of course, the actual status of an ownership interest in a mortuary in a given case could only be determined on the basis of all of [[Orig. Op. Page 2]] the facts pertaining to the manner of acquisition of the ownership interest by the wife.
In addition, it should be noted that in so far as any conveyance of interest in the funeral home or mortuary involves "realty," it must have been made in accordance with RCW 26.16.050, which provides as follows:
"A husband may give, grant, sell or convey directly to his wife, and a wife may give, grant, sell or convey directly to her husband 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, 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] 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 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 heretofore made but in which the husband and wife 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."1/
It is hoped that the foregoing will be of some assistance to you.
Very truly yours,
FOR THE ATTORNEY GENERAL
Philip H. Austin
Assistant Attorney General
*** FOOTNOTES ***
1/A parol gift of realty from one spouse to another is void. Graves v. Graves, 48 Wash. 664, 94 Pac. 481 (1908); Union Savings & Trust Co. v. Manney, 101 Wash. 274, 172 Pac. 251 (1918).