A Virginia postnuptial agreement explains how two married people will divide their marital property if their marriage terminates due to divorce or death. Postnups are useful because they let couples structure their financial situations according to their preferences instead of making them default to the state’s rules.
Postnups differ from prenups, as couples sign prenups before marriage while couples sign postnups after they marry. Virginia has similar rules for prenups and postnups.
Legal Considerations
- Signing Requirements: Both parties shall sign this agreement (§ 20-149).
- Dividing Property: Equitable division (§ 20-107.3).
Understanding Postnuptial Agreements in Virginia
Prenup Laws That Apply to Postnups
Because of the ambiguity around postnups in state laws, courts often refer to the following prenup laws to govern postnups:
- § 20-147 – Application: This chapter applies to any postnup executed on or after July 1, 1986.
- § 20-148 – Definitions: “Property” refers to any interest, future or present, equitable or legal, contingent or vested, in personal or real property, including earnings and income.
- § 20-150 – Content of Agreement: A postnup can contain spousal support, a will to carry out the agreement’s provisions, the right to manage and control property, the rights and obligations of both parties regarding shared property, and any other elements that don’t violate public policy.
- § 20-151 – Enforcement; Void Marriage: The parties should enter the postnup voluntarily and have adequate knowledge of each other’s financial situations. The agreement should also be fair to both parties and not favor one over the other.
- § 20-152 – Limitation of Actions: When parties to a postnup get married, any statute of limitations that would normally apply to a legal claim seeking relief under that agreement is suspended.
- § 20-153 – Amendment or Revocation of Agreement: The parties must create a written agreement to amend or revoke a postnup.
- § 20-154 – Prior Agreements: Any postnups that parties entered before this chapter’s enactment shall be valid and enforceable if they’re otherwise valid as contracts.
- § 20-155 – Marital Agreements: Married people can enter into agreements with each other to settle either (or both) party’s obligations and rights as provided in §§ 20-147 through 20-154.
§ 64.2-620 – Non-Probate Transfers on Death
- A provision for a non-probate transfer on death in a postnup is nontestamentary.
- Nontestamentary transfers are arrangements where someone’s money goes to another person after their death without going through a will. These transfers can occur in a few ways:
- The person who dies can specify in a postnup that certain money should go to a particular person after their death.
- If there’s an agreement where money is owed, but the person who was supposed to receive it dies before they get paid, the payment stops.
- If someone owns the property and writes in a postnup that it should go to a specific person when they die, the transfer can happen without needing to go through a will.
§ 64.2-422 – When Omitted Spouse to Take Intestate Portion
- If a testator (author of a last will) doesn’t include their spouse in their will, and the spouse married the testator after they wrote the will, the omitted spouse must receive a share of the estate as if the decedent had died without a will.
- However, if it’s obvious from the will or a valid postnup that the testator intentionally left out their spouse, the omitted spouse won’t automatically receive a share of the estate.
