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 the event 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.
RCW 26.16.120 – Agreements as to Status
- Nothing in the state’s laws bans a wife and husband from creating a postnup to discuss the disposition or status of their community property.
- A postnup can affect all or just a portion of the community property.
- A postnup doesn’t remove the rights of creditors or limit the powers of the superior court to cancel or invalidate the agreement if there’s evidence of fraud or another compelling reason.
- Community property and inheritance rights may still apply, especially if individuals have unlawfully caused the death of their spouse.
RCW 26.16.150 – Rights of Married Persons in General
- Every married person has the same liberty and right to dispose of, enjoy, hold, and acquire property as if they were unmarried.
- They can also sue and be sued as if they were unmarried.
RCW 26.16.160 – Civil Disabilities of Wife Abolished
- The state abolishes all laws that recognize or impose civil disabilities upon a wife if they aren’t recognized or imposed on the husband.
RCW 26.16.210 – Burden of Proof in Transactions between Husband and Wife
- When any question arises about the good faith of a postnup between spouses, the burden of proof is the responsibility of the party asserting the good faith.
RCW 26.16.250 – Quasi-Community Property – Characterization Limited to Determination of Disposition at Death – Waiver by Written Agreement
- Categorizing property as quasi-community property is only valid when disposing of property at the time of a spouse’s death.
- 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.
