This is the second part of our two part quiz on community property and a spouse’s liability for injuries caused by his or her spouse to another individual.  In the first part of this quiz, we looked at how a court determines whether or not the community should be liable for a tort (i.e., civil wrongdoing) committed by only one spouse.   This part of the quiz shows how the the courts approach compensation when only one spouse is liable for the tort but may not have any separate property from which to compensate their victim.

The first case describes how property that was once community becomes separate upon the death of one spouse – thereby allowing the court to get around the community/separate distinction altogether when trying to compensate a tort victim.  The second case shows how the court shifted from an absolute prohibition on compensating tort victims with community property (as seen in the Newbury case in Pt. 1), to a more equitable approach which allows a tort victim to take community property when there’s no separate property to take, and which also allows the innocent spouse to seek reimbursement for the taken property from the wrongdoing spouse.

The Wasted Hostage-Taker

Margaret and Sam were married for 20 years. Sam struggled with a drinking problem throughout the marriage. Fed up with his drinking, Margaret finally left Sam. She filed for divorce and sought a restraining order which prohibited him from visiting her when he was drunk. One evening in November of 1972, Sam decided to try to patch things up with Margaret. Unfortunately, Sam’s strategy for getting back together with his wife involved booze, firearms and hostage-taking.

That evening, Sam went to his wife’s apartment with a rifle. Maragaret was not home at the time. Sam shot off a round at the apartment complex and, understandably, was eventually asked to leave. Sam decided to pay a visit to a couple – Lloyd and Patricia – with whom he and Margaret had been close during their marriage. He added a revolver to his cache of weapons, and showed up at Lloyd and Patricia’s house with the firearms in hand.

Upon being greeted by their drunk and heavily armed friend, Lloyd and Patricia gave Sam some coffee, which Sam enhanced with whiskey. The cops were called, and began gathering outside the house. Meanwhile, Sam announced that he was on a mission to reconcile with Margaret. He called Margaret several times and informed her that he would be holding their friends hostage until she agreed to get back together. Sam then made good on his word and pointed his rifle at Lloyd and fired. It did not go off – that time.

Lloyd then attempted to take the gun from Sam, and a scuffle ensued. It was during this struggle that Lloyd was shot several times. Sam was then shot and killed by law enforcement from outside the house.

Lloyd later sued Sam’s estate for the injuries he sustained during the fight. While he was alive, Sam had no separate property as a result of his being married to Margaret. Could Lloyd collect from Sam’s estate?

a) Yes, because the husband was acting for the benefit of the community, in trying to reconcile with his wife.

b) No, because the wife didn’t do anything wrong and should not be jointly liable.

c) Yes, since Sam was dead, there was no longer a community and all of the property in his estate was “separate.”

Answer: C. Upon the death of a spouse, the community is considered to be dissolved. At that point, half of the community property became the husband’s separate estate, and the other half became the wife’s separate property.  Thus, even though Sam had no separate property while he was married, his interest in community property converted to separate property upon his death.  Thus, Sam’s separate estate could be reached by Lloyd to compensate him for his injuries.  See Edmonds v. Ashe, 13 Wn. App. 690, 537 P.2d 812 (1975).

The Amorous Yachtsman

Mr. and Mrs. Jacobsen were spending a day with Ms. deElche and her ex-husband, Mr. deElche, on their respective yachts. When the Jacobsens and Mr. deElche started drinking heavily on the Jacobsens’ yacht, Ms. deElche decided to call it a night, and retired to bed in her ex-husband’s boat. After a long night, an intoxicated Mr. Jacobsen climbed abroad the deElche yacht, and sexually assaulted Ms. deElche.

Ms. deElche later sued the Jacobsens. The court found that Mr. Jacobsen was separately liable for the offense because the assault had not been committed for the benefit of the community. So, Ms. deElche received a judgment against Mr. Jacobsen’s separate estate only.

However, the Jacobsens had previously signed a community property agreement which converted all of their property, whether originally separate or community, into community property. Thus, Ms. deElche was out of luck because she could not collect on her judgment as Mr. Jacobsen had no separate estate. Ms. deElche appealed, arguing that she should be able to collect from Mr. Jacobsen’s half of community-owned assets. Did the Court of Appeals agree?

a) No, the husband was not acting for the benefit of the community when he assaulted Ms. deElche so she could only collect from his separately owned assets. Since he had no such assets, she was out of luck.

b) No, the wife didn’t do anything wrong and should not be penalized for her husband’s wrong-doing. Since of the Jacobsens’ property was community owned, there was nothing Ms. deElche could do to get the money the court awarded to her.

c) Yes, there wasn’t enough, or any, separate property for Ms. dElche to collect upon, so she should be able to take from Mr. Jacobsen’s 50% share of the community property.

Answer: C. The court in deElche attempted to strike a balance between punishing the offending spouse, compensating the victim, and shielding the non-offending spouse from liability for the individual wrong-doing of the other.  Thus, the deElche court held that in cases where there is not enough, or not any separate property from which to collect, a victim may reach the offender’s half interest in community personal property. The non-offending spouse then has a right to reimbursement from the offending spouse. So, upon the termination of the community (usually through a divorce, which Ms. Jacobsen quite understandably pursued later), the non-offending spouse is entitled to receive payment for any property sold or transferred as a result of the offending spouse’s misdeeds.  See deElche v. Jacobsen, 95 Wn.2d 237, 622 P.2d 835 (1980).

The deElche case effectively overturned Newbury v. Remington (which was discussed in Part 1), where the court strictly adhered to the rule that only the separate property of a married tortfeasor (i.e.  wrongdoer) can be used to compensate a separate tort.  The deElche court ruled that while separate torts should primarily be compensated with separate property, in cases where there is no separate property, a tort victim can collect from community property.  The rule in deElche then allows the innocent spouse to seek reimbursement from the guilty spouse.  What deElche ultimately represents is a balanced solution to the problem we first looked at in the Newbury case – the problem of how to compensate a tort victim without punishing an innocent spouse – by allowing for the recovery of community property by the victim, with an option to seek reimbursement for the innocent spouse.  Perhaps not perfect, but certainly more likely to prevent injustice to both the victim and the innocent spouse, while still holding a married tortfeasor responsible for his or her misdeeds.