2003 Legislation
Print Friendly

HOUSE BILL NO. 214 – Property, separate/community

HOUSE BILL NO. 214

View Daily Data Tracking History

View Bill Text

View Statement of Purpose / Fiscal Impact



Text to be added within a bill has been marked with Bold and
Underline. Text to be removed has been marked with
Strikethrough and Italic. How these codes are actually displayed will
vary based on the browser software you are using.

This sentence is marked with bold and underline to show added text.

This sentence is marked with strikethrough and italic, indicating
text to be removed.

Daily Data Tracking History



H0214...................................by JUDICIARY, RULES AND ADMINISTRATION
PROPERTY - SEPARATE/COMMUNITY - Amends existing law to revise definitions of
separate property and community property in the probate code; to clarify that
income includes the rent, issue and profit from various property.
                                                                        
02/10    House intro - 1st rdg - to printing
02/11    Rpt prt - to Jud
02/28    Rpt out - rec d/p - to 2nd rdg
03/03    2nd rdg - to 3rd rdg
03/04    3rd rdg - PASSED - 64-0-6
      AYES -- Andersen, Barraclough, Bauer, Bedke, Bell, Bieter, Black, Block,
      Boe, Bolz, Bradford, Campbell, Cannon, Clark, Collins, Cuddy, Deal,
      Denney, Douglas, Eberle, Edmunson, Ellsworth, Eskridge, Field(18),
      Field(23), Gagner, Garrett, Harwood, Henbest, Kellogg, Kulczyk, Lake,
      Langford, Langhorst, Martinez, McGeachin, McKague, Meyer, Miller,
      Mitchell, Naccarato, Nielsen, Raybould, Ridinger, Ring, Ringo, Roberts,
      Robison, Rydalch, Sali, Sayler, Schaefer, Shepherd, Shirley, Skippen,
      Smith(30), Smith(24), Smylie, Snodgrass, Stevenson, Tilman, Trail,
      Wills, Mr. Speaker
      NAYS -- None
      Absent and excused -- Barrett, Crow, Jaquet, Jones, Moyle, Wood
    Floor Sponsor - Clark
    Title apvd - to Senate
03/05    Senate intro - 1st rdg - to Jud
03/11    Rpt out - rec d/p - to 2nd rdg
03/12    2nd rdg - to 3rd rdg
03/14    3rd rdg - PASSED - 32-0-3
      AYES -- Andreason(Rouse), Bailey, Brandt, Bunderson, Burkett,
      Burtenshaw, Calabretta, Cameron, Compton, Darrington, Gannon, Geddes,
      Goedde, Hill, Ingram, Kennedy, Keough, Little, Lodge, Malepeai,
      McKenzie, McWilliams, Noh, Pearce, Richardson, Schroeder, Sorensen,
      Stegner, Stennett, Sweet, Werk, Williams
      NAYS -- None
      Absent and excused -- Davis, Marley, Noble
    Floor Sponsor - Richardson
    Title apvd - to House
03/17    To enrol
03/19    Rpt enrol - Sp signed
03/20    Pres signed
03/21    To Governor
03/27    Governor signed
         Session Law Chapter 139
         Effective: 07/01/03

Bill Text


                                                                        
                                                                        
  ||||              LEGISLATURE OF THE STATE OF IDAHO             ||||
 Fifty-seventh Legislature                 First Regular Session - 2003
                                                                        
                                                                        
                              IN THE HOUSE OF REPRESENTATIVES
                                                                        
                                     HOUSE BILL NO. 214
                                                                        
                      BY JUDICIARY, RULES AND ADMINISTRATION COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING TO SEPARATE AND COMMUNITY PROPERTY; AMENDING SECTION 15-1-201,  IDAHO
  3        CODE,  TO  REVISE  DEFINITIONS OF "SEPARATE PROPERTY" AND "COMMUNITY PROP-
  4        ERTY" AND TO MAKE A TECHNICAL CORRECTION;  AND  AMENDING  SECTION  32-906,
  5        IDAHO  CODE, TO CLARIFY THAT INCOME INCLUDES THE RENTS, ISSUES AND PROFITS
  6        FROM VARIOUS PROPERTY.
                                                                        
  7    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
  8        SECTION 1.  That Section 15-1-201, Idaho Code, be, and the same is  hereby
  9    amended to read as follows:
                                                                        
 10        15-1-201.  GENERAL  DEFINITIONS.  Subject  to  additional definitions con-
 11    tained in the subsequent chapters which are applicable to specific chapters or
 12    parts, and unless the context otherwise requires, in this code:
 13        (1)  "Application" means a written request to the registrar for  an  order
 14    of informal probate or appointment under part 3 of chapter 3 of this code.
 15        (2)  "Augmented  estate"  means  the estate described in section 15-2-202,
 16    Idaho Code.
 17        (3)  "Beneficiary," as it relates to trust beneficiaries, includes a  per-
 18    son  who  has  any  present or future interest, vested or contingent, and also
 19    includes the owner of an interest by assignment or other transfer  and  as  it
 20    relates  to  a  charitable  trust, includes any person entitled to enforce the
 21    trust.
 22        (4)  "Child" includes any individual entitled to take  as  a  child  under
 23    this  code  by  intestate  succession  from  the  parent whose relationship is
 24    involved and excludes any person who is only a stepchild, a  foster  child,  a
 25    grandchild or any more remote descendant.
 26        (5)  "Claims,"  in  respect to estates of decedents and protected persons,
 27    includes liabilities of the decedent or protected person  whether  arising  in
 28    contract,  in  tort or otherwise, and liabilities of the estate which arise at
 29    or after the death of the decedent or after the appointment of a  conservator,
 30    including  funeral  expenses and expenses of administration. The term does not
 31    include estate or inheritance taxes, other tax obligations arising from activ-
 32    ities or transactions of the estate, demands or disputes regarding title of  a
 33    decedent  or protected person to specific assets alleged to be included in the
 34    estate.
 35        (6)  "Court" means the court or  branch  having  jurisdiction  in  matters
 36    relating  to the affairs of decedents, minors, incapacitated and disabled per-
 37    sons. This court in this state is known as the district court.
 38        (7)  "Conservator" means a person who is appointed by a  court  to  manage
 39    the  estate  of  a  protected  person  and  includes  limited  conservators as
 40    described by section 15-5-420, Idaho Code.
 41        (8)  "Determination of heirship of community  property"  shall  mean  that
 42    determination required by the provisions of section 15-3-303, Idaho Code, upon
 43    an application for informal probate not accompanied by presentation of a will.
                                                                        
                                           2
                                                                        
  1        (9)  "Determination of heirship" shall mean that determination of heirship
  2    required by section 15-3-409, Idaho Code, upon a finding of intestacy.
  3        (10) "Devise,"  when  used  as a noun, means a testamentary disposition of
  4    real or personal property and when used as a verb, means to dispose of real or
  5    personal property by will.
  6        (11) "Devisee" means any person designated in a will to receive a  devise.
  7    In  the  case  of a devise to an existing trust or trustee, or to a trustee or
  8    trust described by will, the trust or trustee is the devisee and  the  benefi-
  9    ciaries are not devisees.
 10        (12) "Disability,"  with  respect  to  an  individual, means any mental or
 11    physical impairment which substantially limits one  (1)  or  more  major  life
 12    activities  of the individual including, but not limited to, self-care, manual
 13    tasks, walking, seeing, hearing, speaking, learning, or working, or  a  record
 14    of  such  an  impairment, or being regarded as having such an impairment. Dis-
 15    ability  shall   not   include   transvestism,   transsexualism,   pedophilia,
 16    exhibitionism,  voyeurism,  other  sexual behavior disorders, or substance use
 17    disorders, compulsive gambling, kleptomania, or pyromania.  Sexual  preference
 18    or  orientation  is  not  considered  an  impairment or disability. Whether an
 19    impairment substantially limits a major  life  activity  shall  be  determined
 20    without  consideration  of  the effect affect of corrective or mitigating mea-
 21    sures used to reduce the effects of the impairment.
 22        (13) "Distributee" means any person who has received property of  a  dece-
 23    dent from his personal representative other than as a creditor or purchaser. A
 24    testamentary trustee is a distributee only to the extent of distributed assets
 25    or  increment  thereto remaining in his hands. A beneficiary of a testamentary
 26    trust to whom the trustee has distributed property received  from  a  personal
 27    representative  is  a distributee of the personal representative. For the pur-
 28    pose of this provision "testamentary  trustee"  includes  a  trustee  to  whom
 29    assets are transferred by will, to the extent of the devised assets.
 30        (14) "Emancipated  minor"  shall mean any male or female who has been mar-
 31    ried.
 32        (15) "Estate" means all property  of  the  decedent,  including  community
 33    property  of  the  surviving  spouse  subject  to  administration, property of
 34    trusts, and property of any other person whose affairs  are  subject  to  this
 35    code as it exists from time to time during administration.
 36        (16) "Exempt property" means that property of a decedent's estate which is
 37    described in section 15-2-403, Idaho Code.
 38        (17) "Fiduciary"  includes  personal representative, guardian, conservator
 39    and trustee.
 40        (18) "Foreign personal representative" means a personal representative  of
 41    another jurisdiction.
 42        (19) "Formal proceedings" means those conducted before a judge with notice
 43    to interested persons.
 44        (20) "Guardian"  means a person who has qualified as a guardian of a minor
 45    or incapacitated person pursuant to  testamentary  or  court  appointment  and
 46    includes  limited  guardians as described by section 15-5-304, Idaho Code, but
 47    excludes one who is merely a guardian ad litem.
 48        (21) "Heirs" means those persons, including the surviving spouse, who  are
 49    entitled under the statutes of intestate succession to the property of a dece-
 50    dent.
 51        (22) "Incapacitated person" is as defined in section 15-5-101, Idaho Code.
 52        (23) "Informal proceedings" means those conducted without notice to inter-
 53    ested  persons by an officer of the court acting as a registrar for probate of
 54    a will or appointment of a personal representative.
 55        (24) "Interested person"  includes  heirs,  devisees,  children,  spouses,
                                                                        
                                           3
                                                                        
  1    creditors,  beneficiaries  and  any others having a property right in or claim
  2    against a trust estate or the estate of a decedent, ward or  protected  person
  3    which  may be affected by the proceeding. It also includes persons having pri-
  4    ority for appointment as personal representative, and other fiduciaries repre-
  5    senting interested persons. The meaning as it relates  to  particular  persons
  6    may  vary from time to time and must be determined according to the particular
  7    purposes of, and matter involved in, any proceeding.
  8        (25) "Issue" of a person means all his lineal descendants of  all  genera-
  9    tions,    with  the  relationship of parent and child at each generation being
 10    determined by the definitions of child and parent contained in this code.
 11        (26) "Lease" includes an oil, gas, or other mineral lease.
 12        (27) "Letters" includes letters  testamentary,  letters  of  guardianship,
 13    letters of administration, and letters of conservatorship.
 14        (28) "Minor"  means  a  male  under eighteen (18) years of age or a female
 15    under eighteen (18) years of age.
 16        (29) "Mortgage" means any conveyance, agreement or  arrangement  in  which
 17    property is used as security.
 18        (30) "Nonresident  decedent" means a decedent who was domiciled in another
 19    jurisdiction at the time of his death.
 20        (31) "Organization" includes a  corporation,  government  or  governmental
 21    subdivision  or agency, business trust, estate, trust, partnership or associa-
 22    tion, two (2) or more persons having a joint or common interest, or any  other
 23    legal entity.
 24        (32) "Parent"  includes any person entitled to take, or who would be enti-
 25    tled to take if the child died without a will, as a parent under this code  by
 26    intestate  succession  from  the  child  whose relationship is in question and
 27    excludes any person who is only a stepparent, foster parent, or grandparent.
 28        (33) "Person" means an individual,  a  corporation,  an  organization,  or
 29    other legal entity.
 30        (34) "Personal representative" includes executor, administrator, successor
 31    personal  representative,  special administrator, and persons who perform sub-
 32    stantially the same function under the law governing  their  status.  "General
 33    personal representative" excludes special administrator.
 34        (35) "Petition"  means  a  written request to the court for an order after
 35    notice.
 36        (36) "Proceeding" includes action at law and suit in equity.
 37        (37) "Property" includes both real and personal property or  any  interest
 38    therein and means anything that may be the subject of ownership.
 39        (38) "Protected person" is as defined in section 15-5-101, Idaho Code.
 40        (39) "Protective  proceeding"  is  as  defined  in section 15-5-101, Idaho
 41    Code.
 42        (40) "Quasi-community  property"  is  the  property  defined  by   section
 43    15-2-201, Idaho Code.
 44        (41) "Registrar" refers to magistrates or judges of the district court who
 45    shall  perform  the  functions  of  registrar as provided in section 15-1-307,
 46    Idaho Code.
 47        (42) "Security" includes any note, stock, treasury stock, bond, debenture,
 48    evidence of indebtedness, certificate of interest or participation in an  oil,
 49    gas  or  mining  title  or lease or in payments out of production under such a
 50    title or lease, collateral trust certificate, transferable share, voting trust
 51    certificate or, in general, any interest or instrument  commonly  known  as  a
 52    security,  or  any  certificate of interest or participation, any temporary or
 53    interim certificate, receipt or certificate of deposit for, or any warrant  or
 54    right to subscribe to or purchase, any of the foregoing.
 55        (43) "Settlement,"  in reference to a decedent's estate, includes the full
                                                                        
                                           4
                                                                        
  1    process of administration, distribution and closing.
  2        (44) "Special administrator" means a personal representative as  described
  3    by sections 15-3-614 through 15-3-618, Idaho Code.
  4        (45) "State"  includes  any  state  of  the United States, the District of
  5    Columbia,  the Commonwealth of Puerto Rico, and any  territory  or  possession
  6    subject to the legislative authority of the United States.
  7        (46) "Successor  personal representative" means a personal representative,
  8    other than a special administrator, who is appointed to succeed  a  previously
  9    appointed personal representative.
 10        (47) "Successors" means those persons, other than creditors, who are enti-
 11    tled to property of a decedent under his will or this code.
 12        (48) "Supervised  administration"  refers  to the proceedings described in
 13    part 5, chapter 3, of this code.
 14        (49) "Testacy proceeding" means a proceeding to establish a will or deter-
 15    mine intestacy.
 16        (50) "Trust" includes any express trust, private or charitable, with addi-
 17    tions thereto, wherever and however created. It also includes a trust  created
 18    or  determined  by  judgment or decree under which the trust is to be adminis-
 19    tered in the manner of an express trust. "Trust" excludes  other  constructive
 20    trusts, and it excludes resulting trusts, conservatorships, personal represen-
 21    tatives,  trust  accounts  as  defined  in  chapter  6 of this code, custodial
 22    arrangements pursuant to chapter 8, title 68, Idaho Code, business trusts pro-
 23    viding for certificates to be issued to  beneficiaries,  common  trust  funds,
 24    voting  trusts,  security arrangements, liquidation trusts, and trusts for the
 25    primary purpose of paying debts, dividends, interest, salaries,  wages,  prof-
 26    its,  pensions,  or  employee  benefits of any kind, and any arrangement under
 27    which a person is nominee or escrowee for another.
 28        (51) "Trustee" includes an original,  additional,  or  successor  trustee,
 29    whether or not appointed or confirmed by court.
 30        (52) "Ward" is as defined in section 15-5-101, Idaho Code.
 31        (53) "Will" is a testamentary instrument and includes codicil and any tes-
 32    tamentary  instrument  which merely appoints an executor or revokes or revises
 33    another will.
 34        (54) "Separate property" includes all property of either  the  husband  or
 35    the  wife  owned  by  him  or her before marriage, and that acquired afterward
 36    either by gift, bequest, devise or descent, or that which  either  he  or  she
 37    acquires  with  proceeds  of his or her separate property, by way of moneys or
 38    other property is as defined in section 32-903, Idaho Code.
 39        (55) "Community property" includes all other property acquired after  mar-
 40    riage  by either husband or wife, including the rents and profits of the sepa-
 41    rate property of the husband and wife, unless, by the instrument by which  any
 42    such property is acquired by the wife, it is provided that the rents and prof-
 43    its thereof be applied to her sole and separate use. Real property conveyed by
 44    one  (1)  spouse  to  the  other shall be presumed to be the sole and separate
 45    estate of the grantee is as defined in section 32-906, Idaho Code.
                                                                        
 46        SECTION 2.  That Section 32-906, Idaho Code, be, and the  same  is  hereby
 47    amended to read as follows:
                                                                        
 48        32-906.  COMMUNITY PROPERTY -- INCOME FROM SEPARATE AND COMMUNITY PROPERTY
 49    -- CONVEYANCE BETWEEN SPOUSES. (1)  All other property acquired after marriage
 50    by  either  husband  or  wife is community property. The income, including the
 51    rents, issues and profits, of all property, separate or community,  is  commu-
 52    nity  property  unless the conveyance by which it is acquired provides or both
 53    spouses, by written agreement specifically so providing, declare that  all  or
                                                                        
                                           5
                                                                        
  1    specifically  designated property and the income, including the rents,  issues
  2    and profits, from all or the specifically designated  property  shall  be  the
  3    separate  property  of  one of the spouses or the income, including the rents,
  4    issues and profits, from all or specifically designated separate  property  be
  5    the  separate  property of the spouse to whom the property belongs. Such prop-
  6    erty shall be subject to the management of the spouse owning the property  and
  7    shall not be liable for the debts of the other member of the community.
  8        (2)  Property  conveyed by one spouse to the other shall be presumed to be
  9    the sole and separate estate of the grantee and only the grantor  spouse  need
 10    execute  and  acknowledge  the deed or other instrument of conveyance notwith-
 11    standing the provisions of section 32-912, Idaho Code; provided, however, that
 12    the income, including the rents, issues and profits, from such property  shall
 13    not be the separate property of the grantee spouse unless this fact is specif-
 14    ically stated in the instrument of conveyance.

Statement of Purpose / Fiscal Impact


                           STATEMENT OF PURPOSE

                            RS 12794

Sections 15-1-201(54) and 15-1-201(55) of the Idaho Code provide
definitions for use in the Uniform Probate Code in Idaho, which
covers a wide range of areas, including conservatorship,
guardianship, and probate proceedings.  However, these
definitions in the UPC approximate Idaho Code Sections 32-903 and
32-906, but vary slightly in wording and possible effect from
Sections 32-903 and 32-906.  Additionally, court cases in Idaho
have held that the term "income", in relationship to community
property law, includes "rents, issues, and profits" from
property.  Those holdings are reflected in the language of
Section 15-1-201(55), but not in the language of Section 32-906. 
To make all these definitions consistent with each other and with
the case law, the bill first amends the two definitional sections
in the Probate Code to simply cross reference to Sections 32-903
and 32-906, and then adds the "rents and profits" language to
Section 32-906.

                                
                                
                                
                          FISCAL NOTE

This bill will have no fiscal impact.
               










               
CONTACT:  Robert L. Aldridge
office: (208) 336-9880  
home: (208) 888-4668
Fax: (208) 336-9882
e-mail: rlaldridge@hotmail.com


STATEMENT OF PURPOSE/FISCAL NOTE                            H 214