A West Virginia postnuptial agreement is a legally binding contract that married couples utilize to outline the allocation of property and assets in the event of divorce or the passing of one spouse. While postnups are similar to prenups, they differ in that spouses execute them after marriage rather than before.
State law acknowledges separation agreements, which couples prepare when planning for an imminent divorce. However, state law and court cases provide little instruction for couples who want to create postnups and aren’t planning to divorce. It may be best to seek advice from a local attorney with experience creating postnups in the state.
Legal Considerations
Title 48 of the West Virginia Code discusses domestic relations, mainly marriage, divorce, and the rights of married women.
- Signing Requirements: State law doesn’t contain a single statute outlining the signing requirements for postnups, but these documents follow the basic principles of contract law. It’s highly recommended for both spouses to sign the agreement to affirm its effectiveness.
- Dividing Property: Equitable division (§ 48-5-610).
Asset and Property Rights
Property Ownership
- All married women may own, in their own right, personal and real property, acquired by purchase, gift, or descent and may manage, dispose of, convey, or sell the property as a married man can. [1]
Capacity to Contract
- All married women can make contracts of any kind and assume or stipulate obligations of any kind.
- Any obligation, contract, or act of a married woman should never require the authority of her husband or a judge for its effectiveness or validity. [2]
Business and Earnings
- A postnup shouldn’t be enforceable by way of defense or action unless some writing indicates a contract has been made between them and signed by the spouse against whom the other party is seeking enforcement. [3]
Marriage and Divorce
Separation Agreement
- A court shall divide the property according to the terms of a separation agreement unless the court discovers that any of the following are true: [4]
- One of the parties entered the agreement via duress, fraud, or unconscionability;
- One of the parties has not expressed themselves in terms that would be enforceable by a court in future proceedings; or,
- The agreement is so inequitable as to defeat the purposes of this section.
Spousal Support
- A court order, antenuptial agreement, or separation agreement may demand one spouse to pay spousal support to the other. The payer may pay it in periodic installments or as a lump sum, as the payment schedule won’t affect its classification as spousal support. [5]
Marriage Solemnized Out of State
- If spouses get married to each other but one or both are residents of West Virginia, they can submit certain documentation (such as a transcript of the marriage record) to recognize their marriage legally. [6]
Estate Planning and Inheritance
Inheritance Rights
- A decedent’s surviving spouse has a right of election against either the intestate share or the will, under specific limitations, to take the elective share percentage of the augmented estate. The share is determined by considering the length of the marriage. [7]
