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Disposition of Community Property in a Last Will and Testament

Posted on : September 9, 2016, By:  Chris Hildebrand
Disposition of Community Property in a Last Will and Testament

Disposition of Community Property in a Last Will and Testament

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Under Arizona law, each spouse has a one-half share in the couple’s community property. One spouse cannot dispose of more than their share when they die. But does that rule apply on an item by item basis, or in the aggregate?

Can one spouse leave a third party more than a 50% interest in any single community property asset? This was the issue facing the Arizona Supreme Court in the case of In re Estate of Kirkes, 295 P.3d 432 (2013).

Facts of the Case

Mr. Kirkes and Mrs. Kirkes owned an individual retirement account as a community property asset. It was in Husband’s name and Wife was for years the sole beneficiary. However, before his death, the husband designated his son from a prior marriage, as an 83 percent beneficiary of the IRA.

Wife challenged the beneficiary designation. She asked the court to award her the entire account or, if not, to award her a full 50% of the asset. The court awarded Mrs. Kirkes 50% of the IRA. The Court of Appeals reversed.

The Arizona Supreme Court granted the petition for review.

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Item Theory v Aggregate Theory

During the marriage, each spouse has an undivided half interest in community property. When one spouse dies, he or she may only dispose of his or her half interest in the community property. The remaining half interest belongs to the surviving spouse.

Some community property states apply this 50/50 division to every major asset. In these jurisdictions, the surviving spouse has a 50% interest in every major community asset. These are called “item theory” jurisdictions. In these states, a spouse can only bequeath 50% of any community IRA to a third party. This rule applies in item theory jurisdictions regardless of the existence of other estate assets to equalize the total distribution.

Other jurisdictions view the community property as a whole. These “aggregate theory” jurisdictions give the surviving spouse 50% of the community property estate. But he or she does not necessarily get 50% of each major asset.

Arizona Uses the Aggregate Theory

Disposition of Community Property in a Last Will and Testament in Arizona.

The Arizona Legislature adopted the aggregate theory for dividing up community property in a divorce. This Court allowed a life insurance policy owner to designate a non-spouse beneficiary, implicitly affirming the aggregate theory.

But no Arizona law specifically addresses the issue raised here. However, an Arizona court approved the designation of a third-party beneficiary for a community-property life insurance policy. That was the case of Gaethje v. Gaethje, 441 P.2d 579, 584 (1968).

The Gaethje court upheld the designation because the surviving wife received at least half the total community property. Mrs. Kirke urges the court that retirement accounts are unique and different from life insurance proceeds. But the Court refused to apply a different rule to IRAs. It said that both insurance policies and IRAs are fungible assets so they should be treated similarly.

Husband’s Disposition of IRA Not Unjust

The wife does not allege unique circumstances making the husband’s disposition of the IRA unjust. She has not claimed fraud. Nor does she claim that she will receive less than her full community share if the husband’s beneficiary designation is honored.

The Court upheld the designation. It ruled that one spouse may designate a non-spouse beneficiary for more than 50 percent of a community property IRA. The courts will uphold this as long as the other spouse receives 50% of the overall community property. It may be struck down if other circumstances make the distribution fraudulent or unjust.


The Arizona Supreme Court affirmed the court of appeals’ opinion and reversed the superior court’s order. It ordered the IRA to be distributed in accordance with the beneficiary designation.

If you have questions about the disposition of community property in a last will and testament in an Arizona divorce case, you should seriously consider contacting the attorneys at Hildebrand Law, PC. Our Arizona community property and family law attorneys have over 100 years of combined experience successfully representing clients in community property disputes and family law cases.

Our family law firm has earned numerous awards such as US News and World Reports Best Arizona Family Law Firm, US News and World Report Best Divorce Attorneys, “Best of the Valley” by Arizona Foothills readers, and “Best Arizona Divorce Law Firms” by North Scottsdale Magazine.

Call us today at (480)305-8300 or reach out to us through our appointment scheduling form to schedule your personalized consultation and turn your Arizona community property or family law case around today.

Scottsdale Arizona Divorce Attorney.
Scottsdale Arizona Divorce Attorney.

Chris Hildebrand wrote the information on this page about last will and testaments with disposition of community property in Arizona to ensure everyone has access to information about family law in Arizona. Chris is a divorce and family law attorney at Hildebrand Law, PC. He has over 24 years of Arizona family law experience and has received multiple awards, including US News and World Report “Top Arizona Divorce Attorneys”, Phoenix Magazine “Top Divorce Law Firms”, and Arizona Foothills Magazine “Best of the Valley” award. He believes the policies and procedures he uses to get his clients through a divorce should all be guided by the principles of honesty, integrity, and, quite frankly, actually caring about what his clients are going through in a divorce or family law case. In short, his practice is defined by the success of his clients. He also manages all of the other attorneys at his firm to make sure the outcomes in their clients’ cases are successful as well.

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