Chapter 11.95 RCW

POWERS OF APPOINTMENT

Sections

11.95.010Releases.
11.95.020ReleasesPartial releases.
11.95.030ReleasesDelivery.
11.95.040ReleasesEffect of RCW 11.95.010 through 11.95.050 on prior releases.
11.95.060Exercise of powers of appointment.
11.95.070Application of chapterApplication of 1984 c 149.
11.95.100Exercise of power in favor of holderLimitations.
11.95.110Exercise of power in favor of holderDisregard of provision conferring absolute or similar powerPower of removal.
11.95.120Exercise of power in favor of holderIncome under marital deductionSpousal power of appointment.
11.95.130Exercise of power in favor of holderInference of law.
11.95.140Exercise of power in favor of holderApplicability.
11.95.150Exercise of power in favor of holderCause of action.
11.95.160Lapse of a powerIntent not to exercise a powerTreatment.
11.95.900ConstructionChapter applicable to state registered domestic partnerships2009 c 521.

NOTES:

Trust provisions may relieve trustee from duty, restriction, or liability imposed by statute: RCW 11.97.010.


11.95.010
Releases.

Any power exercisable by deed, will, or otherwise, other than a power in trust which is imperative, is releasable, either with or without consideration, by written instrument signed by the holder and delivered as hereinafter provided.

NOTES:

Short titleApplicationPurposeSeverability1985 c 30: See RCW 11.02.900 through 11.02.903.
SeverabilityEffective dates1984 c 149: See notes following RCW 11.02.005.



11.95.020
Releases—Partial releases.

A power which is releasable may be released with respect to the whole or any part of the property subject to the power and may also be released in such manner as to reduce or limit the persons or objects, or classes of persons or objects, in whose favor the powers would otherwise be exercisable. A release of a power shall not be deemed to make imperative a power which was not imperative prior to the release, unless the instrument of release expressly so provides.

NOTES:

Short titleApplicationPurposeSeverability1985 c 30: See RCW 11.02.900 through 11.02.903.
SeverabilityEffective dates1984 c 149: See notes following RCW 11.02.005.



11.95.030
Releases—Delivery.

(1) In order to be effective as a release of a power, the instrument of release must be delivered to any trustee or co-trustee of the property, and the person holding the property, to which the power relates.
(2) In addition to the delivery required under subsection (1) of this section, a copy of the instrument of release may be published in a legal newspaper of general circulation in the county in which all or the greatest portion of the property is located at least once within thirty days of the delivery required under subsection (1) of this section, which shall from the time of publication constitute notice of the release to all other persons.

NOTES:

Short titleApplicationPurposeSeverability1985 c 30: See RCW 11.02.900 through 11.02.903.
SeverabilityEffective dates1984 c 149: See notes following RCW 11.02.005.



11.95.040
Releases—Effect of RCW 11.95.010 through * 11.95.050 on prior releases.

The enactment of RCW 11.95.010 through * 11.95.050 shall not be construed to impair the validity of any release heretofore made which was otherwise valid when executed.

NOTES:

*Reviser's note: RCW 11.95.050 was repealed by 1995 c 91 § 2.
Short titleApplicationPurposeSeverability1985 c 30: See RCW 11.02.900 through 11.02.903.
SeverabilityEffective dates1984 c 149: See notes following RCW 11.02.005.



11.95.060
Exercise of powers of appointment.

(1) The holder of a testamentary or lifetime power of appointment may exercise the power by appointing property outright or in trust and may grant further powers to appoint. The powerholder may designate the trustee, powers, situs, and governing law for property appointed in trust.
(2) The holder of a testamentary power may exercise the power only by the powerholder's last will, signed before or after the effective date of the instrument granting the power, that manifests an intent to exercise the power. Unless the person holding the property subject to the power has within six months after the holder's death received written notice that the powerholder's last will has been admitted to probate or an adjudication of testacy has been entered with respect to the powerholder's last will in some jurisdiction, the person may, until the time the notice is received, transfer the property subject to appointment on the basis that the power has not been effectively exercised. The person holding the property shall not incur liability to anyone for transfers so made if the person had no knowledge that the power had been exercised and had made a reasonable effort to determine if the power had been exercised. A testamentary residuary clause which does not manifest an intent to exercise a power is not deemed the exercise of a testamentary power.
(3) The holder of a lifetime power of appointment shall exercise that power only by delivering a written instrument, signed by the holder, to the person holding the property subject to the power. If the holder conditions the distribution of the appointed property on a future event, the written instrument may be revoked in the same manner at any time before the property becomes distributable upon occurrence of the event specified, except that any contrary provisions in the written instrument exercising the power, including provisions stating the exercise of the power is irrevocable, shall be controlling. If the written instrument is revoked, the holder of the power may reappoint the property that was appointed in the instrument. In the absence of signing and delivery of such a written instrument, a lifetime power is not deemed exercised.

NOTES:

Short titleApplicationPurposeSeverability1985 c 30: See RCW 11.02.900 through 11.02.903.
SeverabilityEffective dates1984 c 149: See notes following RCW 11.02.005.



11.95.070
Application of chapter—Application of 1984 c 149.

(1) This chapter does not apply to any power as trustee described in and subject to RCW 11.98.019.
(2) This chapter does not apply to the powers of a personal representative of the estate of a decedent when acting in the capacity of personal representative.
(3) Sections 33 through 36, 38, and 39, chapter 149, Laws of 1984 and the 1984 recodification of RCW 64.24.050 as *RCW 11.95.050 apply as of January 1, 1985, to all existing or subsequently created powers of appointment, but not to any power of appointment that expressly or by necessary implication makes those 1984 changes inapplicable.

NOTES:

*Reviser's note: RCW 11.95.050 was repealed by 1995 c 91 § 2.
Clarification of lawsEnforceability of actSeverability2006 c 360: See notes following RCW 11.108.070.
Short titleApplicationPurposeSeverability1985 c 30: See RCW 11.02.900 through 11.02.903.
SeverabilityEffective dates1984 c 149: See notes following RCW 11.02.005.



11.95.100
Exercise of power in favor of holder—Limitations.

If the standard governing the exercise of a lifetime or a testamentary power of appointment does not clearly indicate that a broader or more restrictive power of appointment is intended, the holder of the power of appointment may exercise it in his or her favor only for his or her health, education, support, or maintenance as described in section 2041 or 2514 of the Internal Revenue Code and the applicable regulations adopted under the section.

NOTES:

Severability1993 c 339: See note following RCW 11.98.200.



11.95.110
Exercise of power in favor of holder—Disregard of provision conferring absolute or similar power—Power of removal.

If the holder of a lifetime or testamentary power of appointment may exercise the power in his or her own favor only for his or her health, education, support, or maintenance as described in section 2041 or 2514 of the Internal Revenue Code and the applicable regulations adopted under that section, then a provision of the instrument creating the power of appointment that purports to confer "absolute," "sole," "complete," "conclusive," or a similar discretion shall be disregarded in the exercise of that power in favor of the holder, and that power may then only be exercised reasonably and in accordance with the ascertainable standards set forth in RCW 11.95.100 and this section. A person who has the right to remove or replace a trustee does not possess nor may the person be deemed to possess, by virtue of having that right, the power of the trustee who is subject to removal or to replacement.

NOTES:

Severability1993 c 339: See note following RCW 11.98.200.



11.95.120
Exercise of power in favor of holder—Income under marital deduction—Spousal power of appointment.

Notwithstanding any provision of RCW 11.95.100 through 11.95.150 seemingly to the contrary, RCW 11.95.100 through 11.95.150 do not limit or restrict the distribution of income of a trust that qualifies or that otherwise could have qualified for the marital deduction under section 2056 or 2523 of the Internal Revenue Code, those Internal Revenue Code sections requiring that all income be distributed to the spouse of the decedent or of the trustor at least annually, whether or not an election was in fact made under section 2056(b)(7) or 2523(f) of the Internal Revenue Code. Further, RCW 11.95.100 through 11.95.150 do not limit or restrict the power of a spouse of the trustor or the spouse of the decedent to exercise a power of appointment described in section 2056(b)(5) or 2523(e) of the Internal Revenue Code with respect to that portion of the trust that could otherwise qualify for the marital deduction under either of those Internal Revenue Code sections.

NOTES:

Severability1993 c 339: See note following RCW 11.98.200.



11.95.130
Exercise of power in favor of holder—Inference of law.

RCW 11.95.100 through 11.95.150 do not raise an inference that the law of this state prior to July 25, 1993, was different than contained in RCW 11.95.100 through 11.95.150.

NOTES:

Severability1993 c 339: See note following RCW 11.98.200.



11.95.140
Exercise of power in favor of holder—Applicability.

(1)(a) RCW 11.95.100 and 11.95.110 respectively apply to a power of appointment created:
(i) Under a will, codicil, trust agreement, or declaration of trust, deed, power of attorney, or other instrument executed after July 25, 1993, unless the terms of the instrument refer specifically to RCW 11.95.100 or 11.95.110 respectively and provide expressly to the contrary; or
(ii) Under a testamentary trust, trust agreement, or declaration of trust executed before July 25, 1993, unless:
(A) The trust is revoked, or amended to provide otherwise, and the terms of any amendment specifically refer to RCW 11.95.100 or 11.95.110, respectively, and provide expressly to the contrary;
(B) All parties in interest, as defined in RCW 11.98.240(3), elect affirmatively, in the manner prescribed in RCW 11.98.240(4), not to be subject to the application of this subsection. The election must be made by the later of September 1, 2000, or three years after the date on which the trust becomes irrevocable; or
(C) A person entitled to judicial proceedings for a declaration of rights or legal relations under RCW 11.96A.080 obtains a judicial determination that the application of this subsection (1)(a)(ii) to the trust is inconsistent with the provisions or purposes of the will or trust.
(b) Notwithstanding (a) of this subsection, for the purposes of this section a codicil to a will, an amendment to a trust, or an amendment to another instrument that created the power of appointment in question shall not be deemed to cause that instrument to be executed after July 25, 1993, unless the codicil or amendment clearly shows an intent to have RCW 11.95.100 or 11.95.110 apply.
(2) Notwithstanding subsection (1) of this section, RCW 11.95.100 through 11.95.150 shall apply to a power of appointment created under a will, codicil, trust agreement, or declaration of trust, deed, power of attorney, or other instrument executed prior to July 25, 1993, if the person who created the power of appointment had on July 25, 1993, the power to revoke, amend, or modify the instrument creating the power of appointment, unless:
(a) The terms of the instrument specifically refer to RCW 11.95.100 or 11.95.110 respectively and provide expressly to the contrary; or
(b) The person creating the power of appointment was not competent, on July 25, 1993, to revoke, amend, or modify the instrument creating the power of appointment and did not regain his or her competence to revoke, amend, or modify the instrument creating the power of appointment on or before his or her death or before the time at which the instrument could no longer be revoked, amended, or modified by the person.

NOTES:

Effective date1999 c 42: See RCW 11.96A.902.
Severability1993 c 339: See note following RCW 11.98.200.



11.95.150
Exercise of power in favor of holder—Cause of action.

RCW 11.95.100 through 11.95.140 neither create a new cause of action nor impair an existing cause of action that, in either case, relates to a power that was exercised before July 25, 1993. RCW 11.95.100 through 11.95.140 neither create a new cause of action nor impair an existing cause of action that in either case relates to a power proscribed, limited, or qualified under RCW 11.95.100 through 11.95.140.

NOTES:

Severability1993 c 339: See note following RCW 11.98.200.



11.95.160
Lapse of a power—Intent not to exercise a power—Treatment.

A person shall not be treated as having made a disposition in trust for the use of that individual by reason of a lapse of a power of withdrawal over the income or corpus of a trust created by another person. For this purpose, notification to the trustee of the trust of an intent not to exercise the power of withdrawal shall not be treated as a release of the power of withdrawal, but shall be treated as a lapse of the power.

NOTES:

Clarification of lawsEnforceability of actSeverability2006 c 360: See notes following RCW 11.108.070.



11.95.900
Construction—Chapter applicable to state registered domestic partnerships—2009 c 521.

For the purposes of this chapter, the terms spouse, marriage, marital, husband, wife, widow, widower, next of kin, and family shall be interpreted as applying equally to state registered domestic partnerships or individuals in state registered domestic partnerships as well as to marital relationships and married persons, and references to dissolution of marriage shall apply equally to state registered domestic partnerships that have been terminated, dissolved, or invalidated, to the extent that such interpretation does not conflict with federal law. Where necessary to implement chapter 521, Laws of 2009, gender-specific terms such as husband and wife used in any statute, rule, or other law shall be construed to be gender neutral, and applicable to individuals in state registered domestic partnerships.