What Is a Washington Postnuptial Agreement?
A Washington postnuptial agreement establishes property division and duties if one spouse dies or the couple divorces. Unlike a prenuptial agreement, couples draft a postnup after they marry. By settling important matters in advance, couples may avoid legal complications.
Both spouses must sign a Washington postnup. They must also follow the exact signing requirements for real estate deeds. This means two witnesses and a notary public must sign (WA Rev Code § 26.16.120).
Without a postnup, Washington state divides assets based on community property laws (WA Rev Code § 26.16.030). Under community property, spouses own assets together and are equally responsible for debts. A postnup can overrule this method to fit the spouses’ needs.
How to Write a Postnuptial Agreement for Washington
Drafting a postnuptial agreement if you live in Washington state is simple with Legal Templates’ document editor. Be sure to include the following information:
- Each spouse’s name
- The date of the marriage
- The children of the spouses
- An acknowledgement of financial disclosure
- Property and how it will be divided
- Businesses owned before and during the marriage
- Debts, taxes, and how they will be divided
- Marital home
- Household expenses
- Pets (pair with a pet custody agreement if needed)
- Spousal support
- Waiver of spousal support (if applicable)
- Provision for disability support (if applicable)
- Provision for disposition of property upon death (if applicable)
- Dispute resolution mechanism
- Notary acknowledgments
- Date and governing state of the agreement
Washington state law (WA Rev Code § 26.09.090) lists factors a court can consider when determining spousal support. However, your postnup can set out your own agreement for spousal support that overrides these default factors.
Sample Washington Postnuptial Agreement
View a free Washington postnuptial agreement template to understand what it looks like. Then, create your own and download it as a PDF or Word file.
Legal Requirements and Considerations for Washington Postnups
Postnups in Washington state are enforced by the legal principles in state law (WA Rev Code § 26.16.120). Spouses must have provided full financial disclosure. An agreement can’t undercut the legal rights of someone outside the agreement, such as a creditor. A court can also set aside the agreement for fraud or another equitable reason.
Signing Requirements
Signing a postnup must follow the same procedures as real estate deeds, specifically two witnesses and acknowledgment by a notary public (WA Rev Code § 26.16.120).
Legal Representation
Each spouse can hire a lawyer to independently review the postnup and advise whether it’s in their best legal interest. This can help ensure fairness, as a lawyer can look at the agreement from the perspective of the spouse they represent. However, hiring a lawyer is not necessary for a postnup to be valid.
Excluded Terms
A postnuptial agreement cannot include clauses setting out child support, child custody, or terms of visitation upon divorce. Also, Washington state law abolished all laws imposing civil disability upon wives (WA Rev Code § 26.16.160). Any postnup that relies on any such abolished law is not allowed.
Validity Test
Washington state case law sets out a two-pronged validity test for postnups. The test from Marriage of Matson, 107 Wn. 2d 479 (1986) and In re G.W.-F., 285 P.3d 208 (2012) is:
- The court must first decide if the postnup is fair and reasonable for the spouse who is not looking to enforce it, and if it determines that the agreement is not fair and reasonable;
- It then must determine if the postnup was entered into following procedural fairness. Specifically, the spouses must make full property disclosure. Also, the agreement must be made voluntarily, and each spouse must have full knowledge of their rights.
Quasi-Community Property
Washington state law also allows some property to be described as quasi-community property and, therefore, not community property. However, it is only appropriate to label any property as quasi-community property when it is distributed upon the death of a spouse (WA Rev Code § 26.16.250).
Non-Probate Transfers on Death
A postnuptial agreement can make provisions for how non-probate assets are handled upon death. Washington state law determines how assets are categorized for abatement (or taxation) (WA Rev Code § 11.10.040).
However, the same section of state law that lays out the default categorization also says any non-probate instrument, such as a postnup, can change this default. As a result, you can use a postnup to change how some assets may be taxed at death.
Inheritance Rights
Washington state law determines the order of inheritance of assets when a person dies without a will (WA Rev Code § 11.04.015). If you have a postnup but not a will, this state law might come into play and override your wishes. Consider speaking with an attorney about drafting a postnup and a will or other testamentary legal documents if you live in Washington state.
