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Idaho Community Property at Death
Pillar GuideIdaho17 min read

Idaho Community Property at Death

Idaho recognizes community property for spouses. Income from separate property is community property unless agreed otherwise.

By Settled Editorial

Idaho is a community property state. Property a married couple acquires during the marriage belongs to both spouses in equal halves, and at a death the survivor keeps their own half. With no will, Idaho Code 15-2-102(b) sends the decedent's half to the surviving spouse as well.

That split decides almost every later question in an Idaho estate: what a will can reach, who inherits without one, what a probate has to administer, and what tax basis an heir takes. Every rule below was read at the Idaho Code on the Idaho Legislature's site on September 24, 2026, and each section is linked. Once you know which half you are looking at, Idaho intestate succession and the spouse's claims on top of ownership follow from it.

Idaho Sorts Property Into Two Kinds

Start with the two lists. Everything an Idaho couple owns sits on one of them.

Separate property. Idaho Code 32-903 keeps three things separate: property either spouse owned before the marriage, property acquired afterward "by gift, bequest, devise or descent," and property bought "with the proceeds of his or her separate property." A car a husband owned on his wedding day is his. So is a cabin his mother left him, and so is a truck he bought by selling that cabin.

Community property. Idaho Code 32-906(1) defines it by subtraction: "All other property acquired after marriage by either husband or wife is community property." Wages earned during the marriage land here, because earnings appear nowhere on the separate list. So does the house bought with those wages, the retirement account funded from them, and the car titled in one spouse's name.

The rule most Idaho families miss: income from separate property

Here is where Idaho parts ways with its neighbor Washington. The same subsection of 32-906 goes on: "The income, including the rents, issues and profits, of all property, separate or community, is community property." The rent from a house a wife owned before the marriage, the dividends on stock a husband inherited, and the interest on a separate savings account are all community property by default.

Two things change that default:

  • The conveyance itself. If the deed or other instrument by which the property was acquired provides that the income is separate, it is.
  • A written agreement. Both spouses may sign a written agreement declaring that all or designated property, and its income, belong to one spouse alone.

Take a wife who owned a rental duplex before she married and has collected rent for twenty years. The duplex is still her separate property under 32-903. Every rent check went into a joint account, and the couple never signed an income agreement. That account is community property, and at her death her husband already owns half of it.

Whose name is on the paper does not settle it

Character follows how and when property was acquired, not whose name appears on the title. Idaho does let one spouse convert property to the other by deed. Under Idaho Code 32-906(2), property one spouse conveys to the other is presumed to be the grantee's separate estate, and only the grantor needs to sign. Even then, the income from that property stays community unless the deed says otherwise.

A revocable trust does not change the answer either. Idaho Code 32-906A keeps community property community after both spouses transfer it into a trust that is revocable during their joint lives, says the property remains community, and can be amended by joint consent, unless the trust expressly provides otherwise.

Who Controls Community Property During The Marriage

Idaho Code 32-912 gives either spouse the right to manage and control community property and to bind it by contract. Real estate carries an exception: neither spouse "may sell, convey or encumber the community real estate unless the other joins" in the sale agreement, deed or other instrument.

That joinder rule matters after a death. A surviving spouse who wants to sell a home held as community property needs clear title to the decedent's half first, through probate, a survivorship deed or a court decree. Selling inherited property in Idaho covers who must sign and when. The same section also lets one spouse give the other an express power of attorney to sell, convey or encumber community property.

What Each Half Does At Death

Here is the sentence that governs. Idaho Code 15-3-101 says that "upon the death of a husband or wife, the decedent's share of their community property devolves to the persons to whom it is devised by his last will, or in the absence of testamentary disposition, to the surviving spouse." The survivor's half was never the decedent's to leave, so no Idaho will can give it away.

What it isWhere it goes when one spouse dies
Community property, survivor's halfStays with the survivor. It was theirs all along.
Community property, decedent's halfPasses by will. With no will, 15-2-102(b) gives it to the surviving spouse.
The decedent's separate propertyPasses by will. With no will, 15-2-102(a) splits it between the spouse and the decedent's issue or parents.
The survivor's separate propertyStays with the survivor. It is not part of the estate.

With no will, the halves behave very differently

Idaho Code 15-2-102 has no dollar figure in it. Subsection (b) is one sentence: "The one-half (1/2) of community property which belongs to the decedent passes to the surviving spouse." That holds whether the decedent left children of the marriage, children from an earlier marriage, or none.

The fractions apply only to separate property under subsection (a). The spouse takes the entire separate estate if there is no surviving issue or parent, one half if a parent survives but no issue, and one half if the decedent left issue.

Take a couple married thirty years whose home, cars and brokerage account were all bought with wages. One spouse dies without a will, leaving two adult children. Everything is community property, so the survivor keeps their own half and takes the decedent's half under 15-2-102(b). The children inherit nothing by intestacy, because there is no separate estate for them to share. Who inherits the decedent's half walks the full order for the separate estate.

Both halves can still answer for debts

Keeping half does not wall the property off from the estate's work. Idaho Code 15-3-101 continues that "all of their community property which is under the management and control of the decedent is subject to his debts and administration," and that community property outside the decedent's control is subject to administration where needed to carry out the will. The same sentence makes the whole devolution subject to the homestead allowance, exempt property, creditors' rights, the elective share and administration.

On top of the community half, a surviving spouse can apply for the $50,000 homestead allowance under Idaho Code 15-2-402. It is not automatic. Idaho Code 15-2-405 says the homestead allowance and exempt property "must be applied for," on the same timetable as creditor claims. Idaho surviving spouse rights covers the full claims layer.

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When The Spouse Inherits Everything

A married estate often ends with the surviving spouse as the only taker, either because the will leaves everything to the spouse or because every asset was community property and there was no will. Idaho Code 15-3-1205 gives that estate a shortcut with no dollar cap. The spouse files a verified petition, gives notice of a hearing, and receives a decree that has "the same effect as a formal decree approving or determining distribution."

The trade is real. Subsection (c) makes the surviving spouse "assume and be liable for any and all indebtedness that might be a claim against the estate," and there is no administration. Weigh the debts before choosing it. The Idaho probate guide sets this route beside the small estate affidavit and full probate.

Community Property With Right Of Survivorship

Idaho has no transfer on death deed for real estate. What it offers married couples instead is a survivorship form of community property, and it has to be declared in so many words.

Real estate. Idaho Code 15-6-401, added in 2008, says real property held "as community property with right of survivorship shall, upon the death of one (1) spouse, transfer and belong to the surviving spouse." The estate exists only "when expressly declared in the grant, transfer or devise." A couple already holding title as community property can create it by deeding the property to themselves with that declaration.

Personal property. Idaho Code 15-6-403, added in 2015, does the same for accounts and other personal property. The grant must be written and expressly declared, and it takes effect on delivery, while both spouses are alive, to the bank or other entity holding the property. Checking the right box on a bank or brokerage form counts as a written grant. The first spouse to die "does not have a right of disposition at death" over it.

Four rules ride along:

  • Either spouse can end it alone. For land, Idaho Code 15-6-402 extinguishes the survivorship right when either spouse records an "affidavit terminating right of survivorship" in each county where the land sits. For personal property, Idaho Code 15-6-404 requires a signed document delivered to that entity while both spouses are alive. Either way the property stays community.
  • Divorce severs it. Both sections turn the former spouses' interests into tenancies in common on divorce or annulment unless the divorce court orders otherwise.
  • A will cannot undo an account's survivorship. Idaho Code 15-6-114 says depositing community property in an account does not change its community character, but a right of survivorship between spouses arising from the account's express terms "may not be altered by will."
  • Simultaneous deaths. For personal property, 15-6-404(4) treats the survivorship right as terminated when it cannot be reasonably ascertained which spouse died first.

The older route: a recorded spousal agreement

Idaho Code 15-6-201 also treats an "agreement to pass property at death to the surviving spouse" as nontestamentary. Subsection (c) requires it to be in writing, acknowledged like a deed, and to describe all real property, and divorce revokes it. Subsection (d) is the trap: no such agreement passes title "until it has been recorded, prior to the death of any party thereto," in the county of the decedent's domicile and each county where described land lies. An unrecorded agreement found in a drawer after the funeral does nothing. Creditors' claims also survive against the property it passes.

These tools pass property to the spouse and stop there. They say nothing about what happens at the second death. Avoiding probate in Idaho sets the survivorship forms beside a revocable trust, beneficiary designations and joint accounts.

Property You Brought From Another State

Couples who spent their working years in a separate property state and retired to Idaho own property that was never community property when they bought it. Idaho answers that with a separate label.

Idaho Code 15-2-201(b) defines quasi-community property as all personal property wherever situated, and all real property in Idaho, that the decedent acquired while domiciled elsewhere and that "would have been the community property of the decedent and the surviving spouse had the decedent been domiciled in this state at the time of its acquisition." Property taken in exchange for it counts too. Land in another state counts only if that state lets Idaho law govern its descent.

At the death of a married person domiciled in Idaho, subsection (a) gives one half to the surviving spouse. The other half is "subject to the testamentary disposition of the decedent and, if not devised by the decedent, goes to the surviving spouse." Subsection (c) makes all of it subject to the decedent's debts.

The elective share reaches quasi-community property only

Idaho's elective share is narrow. Idaho Code 15-2-203 limits the surviving spouse's elective right "to one-half (1/2) of the total augmented quasi-community property estate." Idaho separate property is outside it, and so is community property, where the survivor already owns half.

Idaho Code 15-2-202 pulls some lifetime transfers of quasi-community property back into the count, such as property the decedent gave away while keeping its income, held with survivorship, or gave away within two years of death above the federal gift tax annual exclusion. The spouse elects by petition under Idaho Code 15-2-205 within nine months after the death or six months after the probate petition was filed, whichever is later.

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The Basis Answer Idaho Families Miss

Community property carries a federal tax advantage that separate property states cannot offer, and it shows up when an heir sells.

26 U.S.C. 1014(a) gives property acquired from a decedent a basis equal to its fair market value at death. Subsection (b)(6) extends that to "property which represents the surviving spouse's one-half share of community property held by the decedent and the surviving spouse under the community property laws of any State," so long as at least one half of the whole community interest was includible in the decedent's gross estate.

Where that condition is met, both halves of an Idaho community asset are revalued at the first death. A Boise rental in Ada County bought for $180,000 and worth $620,000 at the death gives the surviving spouse a $620,000 basis on the whole property. The same house owned as joint tenants in a separate property state would revalue only the decedent's half. The full step-up on community property works through the arithmetic, and a CPA should confirm the treatment of any asset you plan to sell.

Sorting Your Own Assets

Work asset by asset. For each one, answer four questions in order.

  1. When was it acquired? Before the marriage, it starts as separate property under 32-903. After, 32-906(1) starts it as community property.
  2. How was it acquired? Gift, bequest, devise or descent keeps it separate, and so does buying it with separate money. Wages do not, and neither does income from separate property without a written agreement.
  3. Where did the couple live at the time? Property acquired while domiciled outside Idaho may be quasi-community property under 15-2-201.
  4. Did the couple sign anything? An interspousal deed under 32-906(2), an income agreement under 32-906(1), a survivorship declaration under 15-6-401 or 15-6-403, or a recorded agreement under 15-6-201 can change the answer.

Gather the deeds, account opening forms, beneficiary designations and any gift or inheritance paperwork before you decide. Where separate rent and wages flowed through one account for decades, or the couple moved between states more than once, the sorting stops being a paperwork exercise, and an Idaho probate attorney should take the file.

Frequently Asked Questions

Is Idaho a community property state?

Yes. IRS Publication 555 lists Idaho among the nine community property states, alongside Arizona, California, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. The Idaho rule sits at Idaho Code 32-906(1): property acquired after marriage by either spouse is community property unless Idaho Code 32-903 makes it separate.

Who gets community property when a spouse dies in Idaho without a will?

The surviving spouse keeps their own half, and Idaho Code 15-2-102(b) sends the decedent's half of the community property to the surviving spouse as well. Children, including children from an earlier marriage, take no part of the community property by intestacy. They share only in the decedent's separate property.

Can an Idaho will give away all of the community property?

No. Idaho Code 15-3-101 says that on the death of a husband or wife, the decedent's share of their community property devolves by will, or to the surviving spouse if there is no will. The survivor's half was never the decedent's to leave.

Is rent from a spouse's separate rental house community property in Idaho?

By default, yes. Idaho Code 32-906(1) makes the income, including the rents, issues and profits, of all property, separate or community, community property. The income stays separate only if the conveyance says so or both spouses sign a written agreement saying so.

Does Idaho community property avoid probate?

Not automatically. Idaho Code 15-3-101 subjects the community property under the decedent's management and control to the decedent's debts and to administration. Title can skip probate when a deed expressly creates community property with right of survivorship under Idaho Code 15-6-401, or a written account designation does the same for personal property under Idaho Code 15-6-403.

What is quasi-community property in Idaho?

Idaho Code 15-2-201(b) defines it as property the decedent acquired while living in another state that would have been community property had the decedent lived in Idaho at the time. At the death of a married person domiciled in Idaho, half belongs to the surviving spouse and the other half passes by will or, if not devised, to the spouse.

Sources:

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Information current as of September 24, 2026

Settled Estate is not a law firm, and this content is for informational purposes only and does not constitute legal advice. Probate laws and procedures in Idaho can change. Consult with a qualified attorney for advice specific to your situation. Full disclaimer.

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