Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1963 No. 65 -
Attorney General John J. O'Connell


The homestead allowance which a surviving spouse may claim is determined by the law in effect on the date of the decedent's death and not the date on which the estate is probated.

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                                                                October 14, 1963

Honorable Pat Comfort
State Representative, 26th District
819 So. Kay Street
Tacoma 5, Washington

                                                                                                                Cite as:  AGO 63-64 No. 65

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office on a question which we paraphrase as follows:

            If a person died prior to the effective date of chapter 185, Laws of 1963, but his estate is probated after the effective date of that act, is the surviving spouse entitled to the $10,000 award in lieu of or in addition to a homestead?

            We answer your question in the negative.


            While chapter 185, Laws of 1963, amends RCW 11.52.010, RCW 11.52.020 and RCW 11.52.022, it does not repeal or amend RCW 11.52.024, which reads in part:

            ". . . the court shall not award more property than could be awarded under the law in effect at the time of the death of the deceased spouse."

            The quoted statute remains in effect.  It bars awards of the amended statutory amount ($10,000) when the deceased spouse died before the amendment's effective date.  While this is dispositive of the question you have raised, it should be pointed out that our supreme court has also decided this question.

            In the case ofIn re Wind's Estate, 32 Wn.2d 64, 200 P.2d 748  [[Orig. Op. Page 2]] (1948), the surviving spouse filed a petition to set aside property in lieu of homestead.  During the two-year interim since the death of the petitioner's spouse the legislature had enacted a new homestead law.  The surviving spouse sought an award under the new law which she could not have qualified for under the law in existence at the time of her spouse's death.  The court ruled that the right to an award in lieu of homestead was governed by the law in effect at the time the decedent died.  In so ruling the court cited Rem. Rev. Supp. of 1945, § 1473 (now RCW 11.52.024, quoted above).  It also relied on the following rule, often since reasserted:

            "That a statute will be construed as having a prospective operation only, unless it is plainly indicated that it shall operate retrospectively, is so well settled that it needs no citation. . . ."  (p. 69)

            We conclude that the amount of an award in lieu of or in addition to homestead is determined by the date of the decedent's death.  If death preceded the effective date of chapter 185, Laws of 1963 (June 13, 1963), the amount is determined by earlier legislation.  If death followed that date the surviving spouse is entitled to the $10,000 award.

            We trust the foregoing will be of assistance to you.

Very truly yours,

Attorney General

Assistant Attorney General