Facts: The dispute between petitioner husband and personal representative Robert Borghi on behalf of the estate of the deceased Jeanette Borghi, and respondent son from a prior marriage Arthur Gilroy concerned the characterization of real property acquired by Jeanette prior to her marriage to Robert and subsequently titled in both Robert and Jeanette’s names. At the center of the dispute were two conflicting presumptions: first, the well established presumption that property acquired by a person before marriage is her separate property and, second, what has been described as a “joint title gift presumption” arising from a change in title to include both spouses’ names under a special warranty deed. A commissioner for the Superior Court of King County entered a judgment in favor of Robert, ruling that the property was community property of Robert and Jeanette at the tie of Jeanette’s death and that, under the rules of intestate succession, the property passed to the husband Robert. On Gilroy’s appeal, the Court of Appeals reversed the Superior Court’s judgment, holding that the property was Jeanette’s separate property at the time of her death, in which the son Gilroy was entitled to inherit it. The Supreme Court of Washington granted Borghi’s petition for review.

Question(s): Was the real property acquired by Jeanette prior to her marriage to Robert Borghi changed in character from her separate property to community property by the time of her death?

Conclusion: Justice Stephens’ opinion for the Court held that the property acquired by Jeanette prior to her marriage to Robert was presumptively her separate property. No contrary presumption arose from the fact that the special warranty deed later issued in the names of both spouses, but rather endorsed a joint title gift presumption. Because Robert did not present clear and convincing evidence to overcome the separate property presumption, the property in question remained Jeanette’s separate property at the time of her death. The Court therefore affirmed the Court of Appeals’ judgment in favor of Gilroy.

Docket No. 80925-9 (from Court of Appeals Division I Case No. 59223-8)

Petitioner: Robert Borghi

(Counsel: Paulette E. Peterson, Sheila C. Ridgway, Catherine Wright Smith, and Valerie A. Villacin)

Respondent: Arthur Gilroy

(Counsel: Robert R. Rickets)

Briefs:

Argument: Tuesday, March 24, 2009 9:00am

[Source: TVW, http://tvw.org]

Decided: Thursday, November 5th, 2009

Vote: 5-4

Opinion: 167 Wn.2d 480 (2009)

Court: Alexander4 Court (2008-2009)

Alexander

Johnson

Madsen
(Concurs)

Sanders

Chambers

Owens
(Dissent)

Fairhurst

Johnson

Stephens
(Majority)

Opinion

Concurrence

Dissent