What Is a Washington Prenuptial Agreement?
In Washington, a prenup falls under general contract law, where it is referred to as an “agreement, promise, or undertaking made upon consideration of marriage” in the Revised Code of Washington (RCW) § 19.36.010. The state has not adopted the Uniform Premarital Agreement Act (UPAA), so state case law governs prenuptial agreements.
Washington is a community property state. This means all property and debts gained during marriage are joint, unless stated otherwise. A prenup allows partners to clarify business ownership, as well as any assets, belongings, or debts that they wish to own separately in their marriage.
In Washington, prenuptial agreements are often used for:
- Property division
- Debt allocation
- Spousal support
You can also add any clause that isn’t “unconscionable” (unreasonable).
How to Write a Prenuptial Agreement in Washington
To write a prenuptial agreement in Washington state, follow these steps. This will help ensure clarity, fairness, and a better chance of making the contract enforceable:
- Add background information: Include each spouse’s name, address, and details about prior marriages and children.
- Define property ownership: Decide how to divide property owned before or acquired during the marriage.
- Clarify business ownership: Specify who owns businesses owned before the marriage and businesses started during the marriage. Also, identify how to divide any proceeds from business growth during the marriage.
- Assign debt responsibility: Decide who will repay individual debts from before the marriage or if they will be shared. Also, determine which debts accrued during the marriage should be treated jointly and which, if any, should be kept separate.
- Consider optional clauses: You can decide if you will file taxes together or apart. Also, consider how to divide the marital home if you divorce. Lastly, think about how to share household costs while married. While not required, these clauses can ensure you and your partner enter your union with clear expectations.
- Determine spousal support: If one partner will financially rely on the other during marriage, you can decide to provide alimony in the event of a divorce or waive your rights. However, spousal support waivers may not be enforceable if your financial situations change.
- Disclose financial information: You and your partner add exhibits to the document to show your financial standing, including records of all assets and debts.
- Review and sign: Look over the document and add your signatures to make it official.
Sample Washington Prenuptial Agreement
Below, you can view a sample Washington prenuptial agreement. You can customize this template using our document editor and then download in PDF or Word format.
Legal Requirements in Washington
Washington’s prenuptial agreements follow state-specific case law, unlike 28 other states in the US, which use the UPAA. As such, the legal requirements for prenups lack the clarity that many other states have on the matter. Judgments happen on a case-by-case basis and rely on precedents set by previous court cases instead of a specific statute.
Signing
RCW § 19.36.010 states that any contract, including those made in consideration of marriage, must be in writing and signed by both parties. Washington state law does not require notarization for prenups. However, obtaining witnesses or a Washington notarization acknowledgement form can support your agreement if any questions about its validity arise.
Enforceability
If a prenuptial agreement’s validity is challenged in court, judges typically take a two-pronged approach to the situation. This test, first established by the case In re Bernard, 165 Wn. 2d 895 (2009), asks:
- Is the agreement fair to the spouse who does not seek to enforce it?
- If not, were the spouses fully transparent about their property, and did both parties enter the agreement willingly with full knowledge of their rights and access to separate legal counsel?
If the answer to both questions is “no,” the judge may deem the contract unenforceable.
Marriage of Matson, 107 Wn. 2d 479 (1986) also affects the enforceability of prenuptial agreements in the state of Washington. In this case, the court established that a premarital contract that eliminates or significantly reduces community property rights should be closely scrutinized for fairness and voluntariness.
Excluded Terms
In Washington, like in other states, spouses cannot decide child custody or give up child support rights in a prenuptial agreement. These stipulations are determined at the time of a divorce settlement to protect the child and ensure they receive proper care.
Attorney Representation
Washingtonians can create prenups without an attorney. However, if you decide to use an attorney, each partner has the right to their own legal representation. Having separate lawyers means each partner gets expert advice. This often helps couples feel more at ease with their choices. It also makes the contract easier to enforce.
Marital vs. Separate Property
In Washington, the state usually sees all property as community property after marriage. However, a prenup or postnuptial agreement can separate belongings, assets, businesses, and debts between partners and alter Washington’s default distribution statute. Specifying separate property can shield individual assets from debt collectors. It holds the individual responsible for debts incurred before marriage. Additionally, it simplifies business and estate planning in the event of divorce or the death of one partner.
