NW Lawyer - June 2014

visit. HIPAA privacy laws may prevent the medical staff from sharing information with the partner. The truth is that without proper planning in advance, your life partner will have no legal say in what happens to you. All of the anguish can be avoided by the decedent either executing a simple will, medical directive, and power of attorney. The partners could execute a quit claim so that they both have an equal interest in the property that was separate property (or held in the name of only one of the partners), although this does have significant consequences if the parties separate because the property is then a community asset. The other option is to hold the property as tenants in common with right of survivorship.

Distributions of assets that are not
controlled by will beneficiary desig-
nations. Family law parties should be
reminded to review and update their des-
ignated beneficiaries on bank accounts,
investment accounts, and retirement
funds. Temporary orders may prohibit
this during the dissolution process, so
clients should be reminded to do so once
the dissolution is finalized. Some people
wrongly assume that because state law
revokes any provision favoring an ex-
spouse made in a will written before a
marriage is dissolved or invalidated, or
before a state-registered domestic part-
nership is terminated, 6 the same is true
for nonprobate assets that pass outside of
a will. This is the general rule, but is not
true in all cases. 7 Washington law explic-
itly recognizes that federal law might be
controlling, and even in states that don’t,
a recent Supreme Court case held that, for
federal benefits, federal law will preempt
state law. 8 Note also that Washington law
requires the marriage to be ended for the
automatic revocation to take effect: legal
separation is not enough.

Death of alleged father. If an alleged father dies prior to paternity being established or even prior to the baby being born, paternity may still be established. The coroner usually saves blood or tissue samples of the deceased, which can be used for paternity establishment. 9

The decedent’s next of kin can sign a
release to have the sample or the court
can order genetic testing of a deceased
individual for “good cause shown.” 10 If
there is no blood sample or DNA sample
available, a genetic testing laboratory
can test the decedent’s parents and/
or siblings to determine the probabil-
ity that the decedent is a parent of the
child. 11 Social Security is supposed to
accept the genetic test results as proof of
paternity. 12 Based on the genetic proof,
the Social Security benefits can be paid
based on the relationship with the de-
ceased parent.
To add the deceased dad to the child’s
birth certificate is more difficult. In one
case, the court appointed a guardian ad
litem on behalf of the decedent and then
used the GAL’s recommendation based
on the DNA testing to establish the pa-
ternity of the child. The Legislature has
specified that genetic testing can be de-
termined by a voluntary test or by test-
ing pursuant to an order of the court. 13
In other cases, it may be necessary to
have a probate filed so that the deceased
can be a party to the paternity action.
The statute does allow for a “representa-
tive authorized by law to act for an indi-
vidual who would otherwise be entitled
to maintain a proceeding but who is de-
ceased.” 14 Venue for the proceeding to
adjudicate parentage can be the county
where the child resides, or where a pro-
ceeding for probate of the presumed or
alleged father’s estate has been com-
menced. 15 The parentage action can be
joined with the probate proceeding. 16

A parentage action can be commenced prior to birth of the child. If a parent knows they may die prior to the birth, they may want to file a petition to establish parentage. 17 The alleged parent can have genetic testing samples collected to be tested against the child’s genetic test sample after birth. 18

Death of child during or after dissolution. There is nothing worse than the loss of a child. The loss is even more difficult to deal with if the parents are not a family unit. Both parents are the child’s next of kin if they are on the birth certificate. If they disagree over disposition of the child’s remains, there is not an easy resolution. Although extremely unusual,

a motion could be filed on the family law motions calendar to deal with issues involved, although the assistance of a counselor may be more beneficial rather than a counselor at law. Under the law, either parent can authorize an autopsy. 19 Although it may sound morbid, there is nothing that prohibits a person from David Petteys Tom Malone Eric Stoll