Prenuptial Agreements in Washington State


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Washington is a Community Property State

Washington is a "community property" state; the community property laws apply to both married couples and registered domestic partnerships. Domestic partnerships are available to same-sex couples, as well as heterosexual couples if at least one of the partners is over age 62.


Defining Community Property

The rules governing whether or not property is community in nature, or the separate property of one spouse or domestic partner, can be quite complicated. Generally speaking, the earnings of either party during the marriage or partnership, or anything purchased with those earnings, is community property. Property acquired by either party prior to the marriage or partnership, or during the relationship by gift or inheritance, is generally considered to be the separate property of the recipient, but may be converted to community property by depositing the property into a joint account or titling it in the name of both parties. If community property is used to improve the separate property of one party, the other party may acquire an equitable ownership interest in the property.


Division of Property

If the marriage or partnership is dissolved by a court, all property, community and separate, is subject to a "just and equitable" division, and the separate property of one party may be awarded to the other party. Moreover, although community property laws do not apply to unmarried couples outside of domestic partnerships, Washington courts have applied equitable legal principals to divide property acquired during an intimate, committed relationship between unmarried couples.


Eliminating Doubt About the Division of Property

Couples often wish to avoid these common-law and statutory rules, and eliminate any doubt as to whether property is community or separate in nature, or how property will be divided when the relationship ends, through the death of one party or otherwise. This is often the case when one or both parties have acquired substantial property prior to the relationship, or expect to receive substantial gifts or inheritances during the relationship. Older couples often want to protect property that one or both parties acquired before the relationship for the benefit of their respective children and grandchildren. Prenuptial Agreements and Cohabitation Agreements can help couples accomplish these goals.


The Law as it Pertains to Prenuptial Agreements

Prenuptial agreements permit parties to create their own rules for the characterization, treatment & disposition of all property that is owned or acquired by the parties; when properly executed, they are considered to be conducive to marital tranquility & avoiding future property disputes. However, the law recognizes that the parties do not deal with each other at arm's length, & that there may be a wide disparity in the parties' sophistication & bargaining power. Therefore, Washington courts apply a two-part test to determine if a prenuptial agreement is valid & enforceable. The burden of proof is on the spouse seeking to enforce the agreement. The first part of the test addresses whether the agreement is substantively fair, i.e., makes a fair & reasonable provision for the party not seeking to enforce the agreement. Generally, an agreement will be upheld even if it operates to the benefit of the wealthier spouse, provided it is not so one-sided as to be unfair to the poorer spouse.


What a Court May Consider in Upholding a Prenuptial Agreement

Even if an agreement is not substantively fair, it may still be upheld if it is procedurally fair. In assessing procedural fairness, a court will consider whether there was full disclosure of the amount, character, & value of each parties' property, & whether the agreement was entered into fully & voluntarily, on independent legal advice & with full knowledge by both spouses of their rights. When analyzing these issues, a court will consider whether the disadvantaged party had a reasonable amount of time to reflect on the proposed terms of the agreement. Therefore, a party who wants a prenuptial agreement should bring up the subject with his or her partner as soon as possible; waiting too long to discuss it raises the possibility that the agreement will fail the procedural fairness test, because of the undue pressure placed on the disadvantaged spouse to fore go both independent legal advice and any meaningful negotiations, in order to avoid postponing the wedding.


How a Will or Revocable Living Trust Affects a Prenuptial Agreement

A party to a Prenuptial Agreement should also make arrangements for disposition of his or her property after death, such as through a Will or Revocable Living Trust; otherwise, the intestacy statutes will control disposition of the property, and may defeat the purpose of the Prenuptial Agreement.

Additional Resources

Law Office of John S. Palmer

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Intestacy occurs if someone dies without a valid will. In this case, the estate goes to probate and is distributed according to the state's intestacy laws.

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