A Washington postnuptial agreement is a legal document married people use to outline their property obligations and powers in case their marriage comes to an end. This document helps them plan for several instances, such as if one spouse passes away or the couple decides to divorce.
With this agreement in place, a couple can avoid the state’s traditional laws surrounding property division in case of death or divorce. Couples sign postnups after they marry, making them different from prenups that couples sign before marriage.
Legal Considerations
- Signing Requirements: Both spouses must sign the agreement. They must also follow the same acknowledgment and notary requirements for real estate deeds, which usually involve two witnesses and a notary public (RCW 26.16.120).
- Dividing Property: Community property (RCW 26.16.030).
Understanding Postnuptial Agreements in Washington
Validity Test
Marriage of Matson, 107 Wn. 2d 479 (1986) and In re G.W.-F., 285 P.3d 208 (2012) discuss a two-prong validity test that postnups must pass. The two prongs are as follows:
- The court must decide whether the agreement is fair and reasonable for the spouse not seeking enforcement of the agreement.
- The court must look into the postnup’s procedural fairness by determining whether the parties fully disclosed the nature of the property involved and whether both parties entered the agreement voluntarily and had full knowledge of their rights.
Asset and Property Rights
Property Ownership
- Every married person has the same liberty and right to dispose of, enjoy, hold, and acquire property as if they were unmarried. [1]
Capacity to Contract
- The state abolishes all laws that recognize or impose civil disabilities upon a wife if they aren’t recognized or imposed on the husband. [2]
- No spouse shall purchase or contract to purchase community real property without the other party joining in the transaction or in the execution of the contract to purchase. [3]
Quasi-Community Property
- Categorizing property as quasi-community property is only valid when disposing of property at the time of a spouse’s death. [4]
- This characterization won’t affect the rights of the deceased spouse’s creditors.
- In all other instances, quasi-community property shall be characterized without regard to this chapter’s provisions.
- Spouses can relinquish, modify, or waive any quasi-community property right granted by this chapter by a postnup, wherever executed, before or after June 11, 1986.
Marriage and Divorce
Separation Agreement
- Spouses can create separation contracts and validate them by publishing them in a legal newspaper. No court decree is necessary. If the spouses later seek legal separation in court, the agreement will be binding. [5]
Spousal Support
- The court can grant a maintenance order for either spouse in a proceeding for the dissolution of a marriage. The court determines the amounts and periods after considering various factors, including the marriage’s duration and the financial resources of the party who will benefit from maintenance. [6]
Marriage Solemnized Out of State
- A marriage between two people that another jurisdiction recognizes as valid will be valid in Washington only if the marriage isn’t otherwise unlawful or prohibited. [7]
Estate Planning and Inheritance
Nonprobate Transfers on Death
- Any nonprobate forms of transfer under which a nonprobate asset goes to a beneficiary when the decedent passes away, such as payable-on-death accounts and joint tenancies, are categorized as specific bequests. [8]
Inheritance Rights
- The net estate of a decedent without a will shall be distributed as follows: [9]
- The surviving spouse shall receive all of the decedent’s share of the net community estate and one of the following:
- Half of the net separate estate if the decedent has surviving descendants; or
- Three-fourths of the net separate estate if the decedent has no surviving descendants but has surviving parents; or
- All of the net separate estate if there are no surviving descendants, parents, or descendants of the parents.
- The surviving spouse shall receive all of the decedent’s share of the net community estate and one of the following:
