IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Estate of

LARRY DEAN NIGGLI.

ROSEMARY NIGGLI, 

Appellant,

v.

DAWN LANDRUM,

Respondent.

No. 84825-9-I

DIVISION ONE

UNPUBLISHED OPINION

HAZELRIGG, A.C.J. — Rosemary and Larry Niggli were a married couple 

who, for nearly the duration of their marriage, resided in a home that Larry owned 

as separate property. After Larry’s death, Rosemary filed an action under the trust 

and estate dispute resolution act (TEDRA)1 and sought an award in lieu of 

homestead exception as his surviving spouse. The trial court granted summary 

judgment dismissal of her TEDRA claims related to the residence based on a 

document she had signed at the request of a lending institution when the home 

was refinanced during the marriage. Rosemary assigns error to the summary 

judgment dismissal of her petition and asserts the bank document was not a waiver 

of her statutory rights as a surviving spouse under TEDRA. We agree. 

Accordingly, we reverse and remand for further proceedings.

 1 Ch. 11.96A RCW.
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FACTS

Rosemary and Larry Niggli were married on October 2, 1999. Larry2 had 

two children from a prior marriage, one of whom is Dawn Landrum. Rosemary had 

one child from a prior marriage, Michelle Atha. The couple lived together in a 

house that the parties do not dispute Larry had purchased prior to the marriage as 

his separate property. Larry took out a home equity line of credit against the 

property during the Nigglis’ marriage in 2006 and refinanced the home in 2013. 

During the 2013 refinancing process, Boeing Employees’ Credit Union (BECU), as 

the lender, required Rosemary to sign a preprinted form entitled “Non-Borrowing 

Person Signature Attachment” (BECU loan attachment). The form included the 

following language:

NAME OF NON-BORROWING PERSON

Rosemary J Niggli

The non-borrowing person named above acknowledges that the real 

property described in the deed of trust attached hereto, and by this 

reference incorporated herein, is the sole and separate property of 

the borrower named above. The non-borrowing person will make no 

claim of title or interest therein. Acknowledgement of the deed of 

trust by execution of this addendum by the non-borrowing person is 

not to be construed as a liability for debt incurred by the borrower but 

is for the purposes of inducement to [BECU] to extend financing 

requested by the borrower so that the purchase or refinance may be 

closed.

(Some capitalization omitted.) Rosemary signed the form on November 27, 2013 

in the presence of a notary. Other documents in that BECU refinancing paperwork 

listed both Larry and Rosemary individually as a “[b]orrower.” On December 13, 

 2 For clarity, because they share the same last name, we refer to Rosemary and Larry by 

their first names. No disrespect is intended.
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the BECU loan attachment was recorded in Snohomish County under auditor file 

no. 201312030092.

In the months before Larry’s death, he and Rosemary began living 

separately due to health concerns. Larry had previously been diagnosed with 

cancer and eventually needed full-time care. Rosemary underwent surgery in July 

2021, and afterwards she resided with Atha.3 On August 4, Larry signed a durable 

power of attorney for health care, naming Landrum as his attorney-in-fact. On 

October 8, Larry executed a last will and testament appointing Landrum as his 

personal representative, and a revocable transfer on death deed which granted 

the home to Landrum. That deed was recorded in Snohomish County three days 

later on October 11. The will left all of Larry’s personal property to his children and 

grandchildren and stated that he “made provision[s] by other means for [his] wife 

Rosemary.”4 Larry passed away on November 5, 2021. 

On December 1, Rosemary filed a petition in Snohomish County Superior 

Court to probate Larry’s estate, apparently unaware of his October 2021 will. 

Landrum appeared in that case as the personal representative of Larry’s estate 

and moved to admit his will. On December 17, Rosemary filed a separate TEDRA 

action5 under a separate cause number. The TEDRA petition requested an award 

from Larry’s property in lieu of a homestead exemption under ch. 11.54 RCW as 

his surviving spouse or, in the alternative, a ruling declaring the home a community 

 3 Atha stated that Larry brought Rosemary to her house because he was unable to take 

care of her due to his own health concerns. Landrum acknowledges that Rosemary moved in with 

Atha, but states that the move was made “well before [Larry’s] hospitalization” and that it was 

because Rosemary needed Atha’s care.

4 These provisions included two pensions and a life insurance policy.

5 A TEDRA action is a claim made under ch. 11.96A RCW, which provides for judicial and 

non-judicial methods for the resolution of disputes involving trusts and estates.
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property asset. She also filed a notice of lis pendens, notifying Landrum that the 

subject of the TEDRA action was to recover the title to or establish a lien on the 

home.

On February 23, 2022, the court conducted its initial hearing on the TEDRA 

petition and, after taking argument from the parties,

6 issued an order which set out 

a number of findings related to the marriage and assets. These included express 

findings that the home was “refinanced in July 2006 possibly with community 

property and then was refinanced again in 2013 possibly with community property”

and that, while the transfer on death deed was recorded, “this however does not 

end the question as to whether Rosemary . . . had an interest in the real property 

by means of equitable lien.” The order continued the matter for 90 days, sustained 

the lis pendens, and reserved all relief sought by the parties, including sanctions.

Shortly thereafter, in March 2022, Rosemary was diagnosed with dementia and 

Atha and her family began to provide full-time, live-in care for her.

In May 2022, the court issued an order that reserved ruling on Landrum’s 

motion to admit the will7 and sua sponte appointed Landrum as the administrator 

of the separate property portion of Larry’s estate and Atha as Rosemary’s guardian 

ad litem after concluding that Rosemary had insufficient capacity to continue as 

the administrator of Larry’s estate. This order directed Landrum to “make 

payments upon the mortgage” and that “no further payments shall be made at this 

 6 The transcript of the hearing was not provided to this court.

7 The parties appear to agree this is what occurred at this stage of proceedings. Further, 

the caption of this order includes “Order on Motion to Admit Will” among the several motions before 

the court. Item seven in the order expressly notes that the court is reserving “any further ruling on 

any other issue presented in this motion,” which presumptively includes the motion to admit the 

will. 
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time from the estate account.” Landrum then refinanced the home as community 

property with her husband.

On August 8, 2022, Landrum filed a motion for summary judgment dismissal 

of all TEDRA claims related to the home, asserting that Rosemary had disclaimed 

her interest in the home by signing the BECU loan attachment which Landrum 

averred acted as both a waiver and a quitclaim deed, and that the transfer on death 

deed was valid. In response, Rosemary asserted an equitable community interest 

in the home and denied that the BECU loan attachment acted as either a waiver 

or a deed. Both parties sought attorney fees and sanctions.

On December 8, 2022, the court granted Landrum’s motion for summary 

judgment, finding that the BECU loan attachment was a “written acknowledgement 

and waiver of all claims of title or interest” in the property and met the general 

statutory requirements for a deed under RCW 64.04.020 and, more specifically, a 

quitclaim deed under RCW 64.04.050. The court found that Rosemary was 

competent at the time she signed the BECU loan attachment and that she made 

the waiver “knowingly, intelligently, and voluntarily.” The December 2022 order 

dismissed without prejudice Rosemary’s claims arising from any community 

interest in the home, but directed that any future claim she might make for 

continuing support must exclude the value of the home. The court also concluded 

that Larry “possessed [t]estamentary [c]apacity at the time he executed the 
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[t]ransfer on [d]eath [d]eed” and that the “[t]ransfer on [d]eath [d]eed is valid on its 

face.”8

Rosemary timely appealed.

ANALYSIS

In her motion for summary judgment, Landrum requested that the home be 

excluded from any calculations of a homestead award because Rosemary 

disclaimed her interest in Larry’s separate property when she executed a legally 

binding waiver of that right through the BECU loan attachment. Summary 

judgment is appropriate “if the pleadings, depositions, answers to interrogatories, 

and admissions on file . . . show that there is no genuine issue as to any material 

fact and that the moving party is entitled to judgment as a matter of law.” CR 56(c). 

Although summary judgment proceedings generally preclude findings of fact by 

the court, under the plain language of TEDRA, if a jury is not demanded, the court 

is required to “try the issues, and sign and file its finding and decision in writing.” 

RCW 11.96A.170. The statute also mandates that the initial hearing on a TEDRA 

petition “be a hearing on the merits to resolve all issues of fact and all issues of 

law.” RCW 11.96A.100(8). Because a TEDRA action is a “special proceeding 

under the civil rules of court,” its statutory provisions “control over any inconsistent 

provisions of the civil rules.” RCW 11.96A.090(1). In view of that statutory 

language, despite the fact that this matter was resolved on summary judgment, the 

trial court acted properly in issuing findings of fact.

 8 Although Rosemary argued in her opposition to summary judgment that, in the alternative, 

the transfer on death deed should be invalidated due to undue influence, she does not challenge 

the court’s conclusion on that issue in this appeal. 
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This court reviews summary judgment motions de novo, “engaging in the 

same inquiry as the trial court.” In re Est. of Gillespie, 12 Wn. App. 2d 154, 166, 

456 P.3d 1210 (2020). “Summary judgment is appropriate only when there are no 

genuine issues of material fact.” Erhart v. King County, 195 Wn.2d 388, 410, 460 

P.3d 612 (2020). The moving party bears the initial burden to demonstrate there 

is no genuine issue of material fact. Welch v. Brand Insulations, Inc., 27 Wn. App. 

2d 110, 115, 531 P.3d 265 (2023). If the moving party meets this burden, “then 

the burden shifts to the nonmoving party to ‘set forth specific facts evidencing a 

genuine issue of material fact for trial.’” Id. (quoting Schaaf v. Highfield, 127 Wn.2d 

17, 21, 896 P.2d 665 (1995)). “All facts and reasonable inferences must be 

interpreted in the light most favorable to the nonmoving party.” Gibson v. Costco 

Wholesale, Inc., 17 Wn. App. 2d 543, 555-56, 488 P.3d 869 (2021).

I. Award in Lieu of Homestead

Rosemary petitioned for an award in lieu of homestead and argued in the 

alternative that Larry’s real property had been converted to a community property 

asset based on commingling of community funds. An award in lieu of homestead 

is a type of TEDRA claim authorized under RCW 11.54.010. The statute permits 

the surviving spouse to petition the court for an award from the property of the 

decedent. RCW 11.54.010(1).

The award in lieu of homestead exemption takes “priority over all other 

claims made in the estate” and “the claimant is to be treated as a general creditor 

of the estate.” RCW 11.54.060. The homestead exemption amount is generally 

the greater of $125,000 or the county median sale price of a single-family home in 
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the preceding calendar year. RCW 6.13.030. However, the statutes addressing 

awards for the support of surviving family members provide factors that a trial court 

may consider in increasing or decreasing the amount of the award. RCW 

11.54.040, .050. “The law favors awards in lieu of homestead as a matter of right 

for the protection of the surviving spouse and as a measure of fairness.” In re Est.

of Garwood, 109 Wn. App. 811, 814, 38 P.3d 362 (2002). In fact, safeguards for 

surviving spouses are of such high priority in Washington that “the “fact that 

granting an award in lieu of homestead may interfere with the testamentary plan 

of a decedent is not a reason to reduce or deny the award.” In re Est. of Lindsay, 

91 Wn. App. 944, 950, 957 P.2d 818 (1998). In combination, these provisions 

provide significant protection to surviving spouses with regard to an award in lieu 

of homestead.

The presumption in Washington regarding the character of property is that 

all assets acquired during the marriage are community property, irrespective of 

how the asset is titled. RCW 26.16.030. But the statutory scheme clarifies that 

property acquired prior to the marriage is considered separate property. RCW 

26.16.010. However, separate property may be converted into a community 

property asset if it “becomes so commingled that it is impossible to distinguish or 

apportion it.” In re Marriage of Chumbley, 150 Wn.2d 1, 5-6, 74 P.3d 129 (2003). 

Even though Larry owned the home prior to his marriage to Rosemary, she 

presented evidence that they used their joint income and labor to maintain it, 

including declarations and bank records establishing that she and Larry shared 

bank accounts held in both of their names and another declaration asserting that 
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her income went into a checking account that she shared with Larry and that the 

money from this shared account was used to pay the debts against the house. 

Rosemary asserted community income was used to pay the mortgage and perform 

maintenance and repairs on the home during the marriage. In its order granting 

summary judgment, the trial court acknowledged that mortgage payments were 

made by the Niggli marital community. Rosemary also provided documentation 

establishing that she and Larry both signed the 2013 BECU refinancing deed of 

trust form as “borrowers.” This evidence raises a genuine issue of material fact as 

to whether the home was Larry’s separate property at the time of his death.

Consequently, the court erred in granting summary judgment on this basis. 

Even if the home was Larry’s separate property, it may still be used in the 

calculation of an award in lieu of homestead pursuant to the plain language of the 

statute. RCW 11.54.010(2) (“The award may be made from either the community 

property or separate property of the decedent.”). The order on summary judgment 

does not contradict this statutory provision generally, but rather, concludes that 

Rosemary may not reach Larry’s separate property in these circumstances 

because she waived all rights to it when she signed the BECU loan attachment. 

The crux of Rosemary’s argument on appeal is that the document she signed 

pursuant to the refinancing of the marital home was not a broad waiver of any and 

all interest in the house or real property in question, particularly in an award in lieu 

of homestead as a surviving spouse.
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II. Marital Agreement

Although an award in lieu of homestead is favored, a surviving spouse may 

be found to have waived the right to such a claim by an express waiver or conduct 

that abandons the right. Lindsay, 91 Wn. App. at 950. Here, the trial court 

specifically found that the BECU loan attachment acted as a “written 

acknowledgment and waiver of all [of Rosemary’s] claims of title or interest in Larry 

Niggli’s home and real property” without engaging in the proper legal analysis 

required for marital agreements. Rosemary alleges that the court’s failure to apply 

the correct standard deprived her of the safeguards traditionally afforded to 

spouses. We agree.

Marital agreements are subject to the general principles of contract law. In 

re Marriage of Obaidi, 154 Wn. App. 609, 226 P.3d 787 (2010). As a type of marital 

agreement, postnuptial property settlements between spouses who have no 

intention to separate are subject to a standard that affords heightened protection 

for spouses. See Friedlander v. Friedlander, 80 Wn.2d 293, 299, 301, 494 P.2d 

208 (1972). When a marital agreement functions to waive a spouse’s statutory 

right to an equitable distribution, it is enforceable only “without the attendant 

dangers of abuse and overreaching by the dominant party.” In re Marriage of 

Matson, 107 Wn.2d 479, 482, 730 P.2d 668 (1986). Matson provides a two-part

test to determine the fairness and enforceability of a pre- or postnuptial agreement. 

Id. The first step considers whether the agreement is substantively fair, meaning 

“whether it provides a fair and reasonable provision for the party not seeking the 

agreement’s enforcement.” In re Parentage of G.W.-F., 170 Wn. App. 631, 645, 
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285 P.3d 208 (2012). “The second prong requires the court to examine the 

procedural fairness of the contract by asking two questions: ‘(1) whether full 

disclosure has been made by the parties of the amount, character and value of the 

property involved, and (2) whether the agreement was entered into fully and 

voluntarily on independent advice and with full knowledge by both spouses of their 

rights.’” Id. (quoting Matson, 107 Wn.2d at 483).

Under this test, but within the procedural framework of summary judgment 

in a TEDRA petition, we must first determine if there is a genuine issue of material 

fact as to whether the provisions of the marital agreement contained in the BECU 

loan attachment were fair and reasonable to Rosemary because Landrum, as the 

personal representative of Larry’s estate, is seeking its enforcement. Larry’s will 

plainly states that he “made provision[s] by other means for [his] wife 

ROSEMARY.” These provisions included two pensions and a life insurance policy. 

They do not include the home where Rosemary resided with Larry for almost the 

entirety of her 22-year marriage to him, which would mean concluding that the 

BECU loan attachment was a marital agreement that waived Rosemary’s right to 

any interest in the residence would effectively leave her homeless after Larry’s 

death. Combined, the facts of the exclusion of any provision in Larry’s will 

regarding the shared home and the operation of the BECU loan attachment as a 

full waiver present a genuine issue of material fact about whether the BECU loan 

attachment, as a purported marital agreement, was fair and reasonable to 

Rosemary.
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Further, Rosemary produced evidence of procedural unfairness should the 

BECU loan attachment be considered a marital agreement that broadly waived her 

rights as a surviving spouse. The evidence particularly addressed the 

voluntariness of her signature and her awareness of what the alleged waiver 

entailed, at least to the extent that it could be interpreted as a permanent release 

of any interest in her marital home. Rosemary produced multiple declarations that 

Larry maintained exclusive control over their finances. This evidence of control 

alone is sufficient to raise a genuine issue of material fact about whether

Rosemary’s signature on the BECU loan attachment was voluntary. 

Most critically, there is no evidence that Rosemary received “independent 

advice” as required under Matson and G.W.-F., and there remains a question of 

fact as to her knowledge of any spousal rights or protections she could be deemed 

to have permanently waived by signing the BECU loan attachment. See Matson, 

107 Wn.2d at 487-88 (finding petitioner had not intelligently and voluntarily signed 

prenuptial agreement that shielded respondent’s separate property from equitable 

division because she did not have time and opportunity to seek independent 

counsel); In re Est. of Boston, 80 Wn.2d 70, 74-75, 491 P.2d 1033 (1971) (holding 

decedent’s statements of intention regarding his own separate property and his 

wife’s did not constitute waiver because clear and explicit language of 

relinquishment was required).

Marital agreements are not removed, arm’s-length transactions, but instead 

are rooted in the presumptive good faith and trust that the parties have toward 

each other as spouses. See Friedlander, 80 Wn.2d at 301 (holding dealings 
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between married parties not arm’s-length transactions because of confidential 

nature of relationship and such transactions require “exercise of good faith, candor 

and sincerity in all matters bearing upon the proposed agreement”). “[W]here any 

question arises as to the good faith of any transaction between spouses . . . the 

burden of proof shall be upon the party asserting the good faith.” RCW 26.16.210. 

The BECU loan attachment includes language that it was “for the purposes of 

inducement to [BECU] to extend financing requested by the [b]orrower so that the 

purchase or refinance may be closed.” Landrum, as personal representative of 

Larry’s estate, has the burden to establish that Larry acted in good faith when he 

obtained Rosemary’s signature on the BECU loan attachment, particularly if the 

contention of the estate is that Larry intended Rosemary’s signature on the BECU 

loan attachment to act as a broad waiver of her spousal rights to the home beyond 

the life of the loan from BECU. Rosemary’s assertions to the contrary are sufficient 

to establish a genuine issue of material fact on whether her signature on the 

purported marital agreement was obtained in good faith.

III. Waiver

“‘A waiver is the intentional and voluntary relinquishment of a known right

. . . . It may result from an express agreement, or be inferred from circumstances 

indicating an intent to waive.’” In re Est. of Petelle, 23 Wn. App. 2d 203, 212-13, 

515 P.3d 548 (2022) (Petelle III) (quoting Dombrosky v. Farmers Ins. Co of Wash., 

84 Wn. App. 245, 255, 928 P.2d 1127 (1996)). “‘The right, advantage, or benefit 

must exist at the time of the alleged waiver. The one against whom waiver is 

claimed must have actual or constructive knowledge of the existence of the right.’” 
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Bainbridge Island Police Guild v. City of Puyallup, 172 Wn.2d 398, 410, 259 P.3d 

190 (2011) (quoting Bowman v. Webster, 44 Wn.2d 667, 669, 269 P.2d 960 

(1954)). Generally, whether waiver has occurred is a question of fact “‘unless 

reasonable minds could reach but one conclusion.’” Renfro v. Kaur, 156 Wn. App. 

655, 661, 235 P.3d 800 (2010) (quoting Harmony at Madrona Park Owners Ass’n 

v. Madison Harmony Dev., Inc., 143 Wn. App. 345, 361, 177 P.3d 755 (2008)). 

Specifically, with regard to the rights of a surviving spouse in a TEDRA action, 

“‘[a]bsent the most clear and explicit language confirming a voluntary 

relinquishment of the award as a known right, a waiver will not be found.’” Hein, 

17 Wn. App. 2d at 260 (quoting Boston, 80 Wn.2d at 75).

A waiver of interest in the home as it relates to refinancing does not address 

whether Rosemary knowingly waived all claims to the home related to an interest 

in an award in lieu of homestead as a surviving spouse. Case law in circumstances 

where courts have concluded that the statutory protections of ch. 11.54 RCW were

waived are instructive, often when the waiving spouse signed an agreement 

specifying that the settlement addresses both marital and property rights. For 

example, in the series of cases dealing with the estate of Michael Petelle, Michael 

and Michelle Petelle entered into a separation agreement under CR 2A, but 

Michael died before the marriage was dissolved, so Michelle was his surviving 

spouse despite the steps they had taken toward divorce. In re Est. of Petelle, 8 

Wn. App. 2d 714, 716-17, 440 P.3d 1026 (2019) (Petelle I). In the first opinion in 

that case, this court determined that the separation agreement executed between 

the Petelles as a step toward the dissolution of their marriage constituted a waiver 
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of Michelle’s homestead allowance because the CR 2A agreement expressly 

included verbiage that it was a “‘complete and final settlement of all [of the parties’] 

marital and property rights and obligations.’” Id. at 723 (emphasis added).

Our analysis in Petelle I primarily relied on two cases: In re Estate of Brown, 

28 Wn.2d 436, 183 P.2d 768 (1947) and Lindsay. Both cases involved situations 

where the surviving spouse had negotiated and executed an agreement pertaining 

to marital rights and property. See Brown, 28 Wn.2d at 440 (reasoning that 

intention to make separation agreement created waiver of right of homestead

regardless of which spouse died first); Lindsay, 91 Wn. App. at 951-52 (concluding 

that undisputed separation agreement between parties created implied waiver of 

homestead award because it clearly reflected intent to give up rights that would 

normally follow spouses). Our Supreme Court affirmed Petelle I and further 

explained that the express provisions of the separation agreement that anticipated 

the possibility of death prior to final dissolution indicated that the parties had 

constructive knowledge of the rights and benefits that a surviving spouse could 

accrue upon death. In re Est. of Petelle, 195 Wn.2d 661, 669, 462 P.3d 848 (2020)

(Petelle II).

In contrast, the BECU loan attachment that Rosemary signed makes no 

mention of the protections that TEDRA provides to surviving spouses or the 

specific right to an interest in a decedent spouse’s separate property. The trial 

court relied on the plain language of the BECU loan attachment to conclude that 

Rosemary executed a waiver, but a valid waiver requires the voluntary 

relinquishment of a known right and the attachment does not expressly mention 
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death, survivorship, or the spousal protections under ch. 11.54 RCW. The BECU 

loan attachment includes neither language regarding Rosemary’s marital rights 

broadly nor an intent to relinquish them, as required by the cases analyzed herein. 

Nor does the BECU loan attachment indicate that it was meant to be a conclusive 

or final agreement between the parties as spouses. In fact, again, the BECU loan 

attachment specifically states that Rosemary’s signature is “for the purposes of 

inducement to [BECU] to extend financing requested by the [b]orrower so that the 

purchase or refinance may be closed.” (Emphasis added.) This language is 

evidence that Rosemary intended to sign the BECU loan attachment only for that 

purpose and not as a broad waiver of her spousal rights under Washington law

generally. The absence of any language in the BECU loan attachment regarding 

the possibility of death prevents any inference from that document that Rosemary 

had constructive knowledge of her rights as a surviving spouse.

The trial court found that Rosemary’s “waiver was made knowingly, 

intelligently, and voluntarily,” but the only basis provided for this finding was that 

she was not suffering from cognitive difficulties or incompetence, which is not 

evidence that she made a knowing waiver of statutory rights as a surviving spouse 

that were not mentioned anywhere in the BECU loan attachment. Rosemary 

cannot waive rights that she did not know she had. Petelle III, 23 Wn. App. 2d at 

212 (waiver requires “‘intentional and voluntary relinquishment of a known right.’”

(emphasis added) (quoting Dombrosky, 84 Wn. App. at 255)). The BECU loan 

attachment acknowledges that the home was Larry’s separate property, but that 

alone is insufficient to constitute a waiver of Rosemary’s spousal rights to the asset 
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in a TEDRA petition subsequent to Larry’s death. The absence of this required 

information in the BECU loan attachment is separately sufficient to establish a 

question of fact about whether she knowingly waived her statutory rights under 

TEDRA and, thus, summary judgment was improper.9

Finally, Rosemary assigns error to the trial court’s conclusion that the BECU 

loan attachment also operated as a quitclaim deed under RCW 64.04.050.

Because our conclusion as to the propriety of any purported waiver or marital 

agreement is dispositive in this case, we need not reach this challenge. Again, 

absent express language or conduct that Rosemary waived her interest in the

home, specifically under TEDRA as a surviving spouse, even if it was Larry’s 

separate property, a quitclaim deed would not extinguish such an interest in a 

TEDRA action. The plain language of RCW 11.54.010(2), that “the award may be 

made from either the community property or separate property of the decedent”

establishes that even if she had quitclaimed any community interest in the home

to Larry by signing the BECU loan attachment, that alone would not prevent her 

from seeking an award in lieu of homestead as his surviving spouse. Accordingly, 

 9 Additionally, the BECU loan attachment was accompanied by the deed of trust that 

described the home and listed the “[b]orrower” as “Larry D. Niggli, a married man, as his separate 

estate.” (Some capitalization omitted). However, that same deed of trust is signed by both Larry 

and Rosemary and designates each of them as a “[b]orrower.” The inconsistent framing of the 

spouses’ respective interests in the home, at a minimum, raises a genuine issue of fact as to how 

BECU characterized the asset for purposes of refinancing. While the lender’s characterization is 

by no means controlling, it is clear that the court relied on the language in one document related to 

the BECU loan in reaching its ultimate conclusion, despite other related documents that could 

support a different outcome. This suggests weighing of evidence, which is improper at the 

summary judgment stage, and the court offers no reasoning to explain why it would credit the titles 

and roles of the parties in some of the banking documents over others that were contradictory. The 

inconsistencies in the totality of the BECU loan documents likewise present a genuine issue of 

material fact as to whether one of them alone constituted a valid marital agreement.
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the trial court’s conclusion that the BECU loan attachment acted as a quitclaim 

deed is irrelevant.

Genuine issues of material fact exist as to whether Rosemary knowingly 

waived her rights to the marital home as a surviving spouse when she signed the 

BECU loan attachment pursuant to the 2013 refinance of the home during the 

course of her marriage to Larry. Summary judgment of Rosemary’s TEDRA action 

was improper.

Reversed and remanded.

10

WE CONCUR:

 10 During oral argument before this court, Landrum’s attorney sought an award of attorney 

fees on appeal. Wash. Ct. of Appeals oral argument, In re Est. of Niggli, No. 85825-9-I (Jan. 25, 

2024), at 17 min., 25 sec., video recording by TVW, Washington State’s Public Affairs Network, 

https://tvw.org/video/division-1-court-of-appeals-2024011619. We decline to entertain the request 

presented for the first time at oral argument because our rules expressly require presentation of 

fee requests in briefing. RAP 18.1(a), (b) (“If applicable law grants to a party the right to recover 

reasonable attorney fees or expenses on review . . . . The party must devote a section of its opening 

brief to the request for the fees or expenses.”).

Separately, a fee award would be improper as Landrum does not prevail on appeal.