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Prenuptial Agreements: A Comprehensive Guide for All Couples

Learn everything you need to know about prenuptial agreements, how they protect your assets, and why they're valuable for couples with children, young couples, blended families, and those with significant assets.

Introduction

A prenuptial agreement (commonly called a 'prenup') is a legal contract created by two people before they marry that typically outlines how assets and debts will be divided in the event of divorce or death. While often associated with wealthy individuals protecting their fortunes, prenups serve many practical purposes for couples across various life situations. This document can help clarify financial rights and responsibilities, protect family businesses, shield one spouse from the other's debts, and establish clear guidelines for property division. Whether you're entering marriage with children from previous relationships, significant assets, or simply want clarity about your financial future together, understanding prenuptial agreements is an important step in building a secure foundation for your marriage.

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Key Things to Know

  1. 1

    Prenuptial agreements must be executed well before the wedding (at least 30 days is recommended) to avoid claims of coercion or duress.

  2. 2

    Both parties must provide complete and honest financial disclosure for the agreement to be valid.

  3. 3

    Each person should have their own independent legal counsel review the agreement before signing.

  4. 4

    Prenups cannot determine child custody or child support amounts, as these must be decided based on the best interests of the child at the time of divorce.

  5. 5

    The agreement should be reviewed and potentially updated after major life events such as the birth of children, significant inheritance, or substantial changes in financial circumstances.

  6. 6

    State laws vary regarding prenuptial agreements, so it's essential to work with an attorney familiar with the laws in your jurisdiction.

  7. 7

    A well-crafted prenup promotes financial transparency and communication, which can strengthen your relationship rather than undermine it.

  8. 8

    For blended families, a prenuptial agreement should work in conjunction with your estate plan to ensure children from previous relationships are protected.

Key decisions before you file

Before you file a Prenuptial Agreement in Washington, a few decisions shape the document: which option to choose and what each one means. The Prenuptial Agreement guide walks through them.

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Washington Requirements for Prenuptial Agreement

  • Voluntary Execution (In re Marriage of Bernard, 165 Wn.2d 895 (2009))

    Both parties must enter into the agreement voluntarily, without coercion, duress, or undue influence. Washington courts scrutinize prenuptial agreements for evidence of involuntary execution.

  • Full Disclosure (RCW 19.36.010)

    Each party must provide full and fair disclosure of all assets, liabilities, and income prior to execution of the agreement. Failure to disclose material information may render the agreement unenforceable.

  • Independent Legal Representation (In re Marriage of Matson, 107 Wn.2d 479 (1986))

    Each party should have the opportunity to consult with independent legal counsel before signing the agreement. While not absolutely required, lack of independent counsel may be a factor in determining enforceability.

  • Reasonable Time for Review (In re Marriage of Foran, 67 Wn. App. 242 (1992))

    The agreement should be presented with reasonable time before the wedding for review and consideration. Presenting an agreement immediately before the wedding may suggest duress.

  • Substantive Fairness (In re Marriage of Matson, 107 Wn.2d 479 (1986))

    The agreement must not be unconscionable at the time of execution or enforcement. Washington courts may refuse to enforce provisions that are grossly unfair.

  • Community Property Designation (RCW 26.16.030)

    Washington is a community property state, and the agreement must clearly identify which assets will remain separate property and which will be considered community property during marriage.

  • Separate Property Protection (RCW 26.16.010)

    The agreement should specify how separate property brought into the marriage will be treated, including appreciation of separate property during marriage.

  • Spousal Maintenance Provisions (In re Marriage of Foran, 67 Wn. App. 242 (1992))

    Provisions regarding waiver or limitation of spousal maintenance (alimony) must be fair and reasonable at the time of enforcement, not just at execution.

  • Child Support Limitations (RCW 26.19.001)

    Provisions attempting to limit or waive child support obligations are unenforceable as against public policy. Child support is the right of the child, not the parents.

  • Child Custody Provisions (RCW 26.09.002)

    Provisions attempting to predetermine child custody arrangements are generally unenforceable. Courts will make custody determinations based on the best interests of the child at the time of divorce.

  • Statute of Frauds Compliance (RCW 19.36.010)

    The prenuptial agreement must be in writing and signed by both parties to be enforceable under Washington's Statute of Frauds.

  • Death Provisions (RCW 11.04.015)

    The agreement should address disposition of property upon death, including waiver of elective share rights if desired.

  • Retirement Benefits (29 U.S.C. § 1056(d)(3))

    Special attention must be paid to retirement benefits, which are subject to both state and federal law. ERISA-governed plans require specific waiver language and may require a separate QDRO.

  • Choice of Law Provisions (Restatement (Second) of Conflict of Laws § 187)

    The agreement should specify which state's law will govern interpretation and enforcement, especially if the couple may relocate or has property in multiple states.

  • Sunset Provisions (In re Marriage of DewBerry, 115 Wn. App. 351 (2003))

    The agreement may include provisions that expire or modify after a certain period of time or upon specific events (such as the birth of children).

  • Amendment Procedures (RCW 19.36.010)

    The agreement should specify how it can be modified or amended after execution, typically requiring a written document signed by both parties.

  • Severability Clause (General Contract Law Principles)

    A provision stating that if any part of the agreement is found unenforceable, the remainder of the agreement will still be valid and enforceable.

  • Tax Considerations (26 U.S.C. § 1041)

    The agreement should address tax implications of property division and support payments, including compliance with federal tax laws regarding alimony and property transfers.

  • Debt Allocation (RCW 26.16.200)

    Clear provisions regarding responsibility for debts brought into the marriage and those incurred during marriage, including protection from liability for a spouse's separate debts.

  • Business Interests Protection (RCW 25.15.130)

    Special provisions for business owners to protect business interests, including valuation methods, buyout provisions, and management rights during and after marriage.

Frequently Asked Questions

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