The all-inclusiveWashington prenup

The controlling statute & cases

What law governs prenups in Washington?

Washington is one of the few states that doesn't have a dedicated prenuptial agreement statute. This means that the law surrounding prenuptial agreements relies on general contract principles and case law to dictate the requirements for creation, contents, and enforcement. These laws lay out the requirements for a prenup, including putting the agreement in writing and signing it (Wash. Rev. Code § 19.36.010), and the two-step test for fairness, which evaluates the terms of the agreement, financial disclosure, and whether the parties had attorneys (DewBerry v. George, 115 Wash.App. 351 (2003)).

Is Washington a UPAA state?

No, Washington is one of the states that has not enacted the Uniform Premarital Agreement Act (UPAA). The UPAA is a model act that is intended to create uniformity across the states regarding prenuptial agreement creation and enforcement. There are 28 states, plus D.C., that have enacted some version of the Act. It is unclear why Washington has yet to adopt the act. Instead, Washington relies on contract principles and case law (i.e., court opinions) to lay out the requirements for a prenuptial agreement.

Requirements for a Washington prenup

What are the requirements for a prenup in Washington?

Prenuptial agreements in Washington must be in writing and signed under the statute of frauds. (Wash. Rev. Code § 19.36.010). In Washington, since there is no specific prenuptial agreement statute, the contracts are subject to general contract principles, but also some special rules that have been formulated by the courts. (In re Marriage of Burke, 96 Wash.App. 474 (1999)). One of the rules that has been formulated by Washington courts includes a two-step test in evaluating prenups: (1) Is there a provision favoring the person who wants the prenup thrown out? If yes, then the analysis stops there, and the prenup is valid. If the answer is no, then the analysis continues on to (2) ask whether there was full disclosure of "the amount, character, and value of the property involved," and whether the agreement was "entered into fully and voluntarily on independent [legal] advice and with full knowledge by both spouses of their rights." (DewBerry v. George, 115 Wash.App. 351 (2003)).

In other words, this means Washington courts may evaluate prenups by first determining whether the terms of the prenup were fair to the spouse challenging it, and if not, whether there was full financial disclosure and a voluntary signing with knowledge of legal rights and independent legal advice.

Requirements:

• In writing
• Signed by both parties
• Full disclosure of the amount, character, and value of the property involved
• Entered into voluntarily, with full knowledge of legal rights
• Fair, or supported by independent legal advice where terms are one-sided

Does a prenup need to be notarized in Washington?

No, it is not a requirement for prenups to be notarized in Washington state. Notarization is the act of signing a document in front of a notary public and having them attach their notary seal to let a future judge know that the parties verified their identities and confirmed they knew they were signing a prenup. Notarization is a relatively affordable and easy way to add a layer of protection to the agreement and help deter certain arguments around validity.

Do both parties need a lawyer for a prenup in Washington?

No, it is not a strict requirement for both parties to hire a lawyer for a Washington prenuptial agreement. While Washington courts do encourage parties to hire counsel to represent them for their prenup, the absence of legal advice does not automatically invalidate an agreement (Matter of Marriage of Matson, 107 Wash.2d 479 (1986)).

However, the absence of a lawyer becomes particularly important when the agreement is deemed one-sided by a court. If an agreement is deemed totally one-sided, then Washington courts will consider whether each party had proper financial disclosure and independent legal advice. In other words, if the agreement is both one-sided and there was no attorney representing the disadvantaged party, the agreement will not be upheld. (DewBerry v. George, 115 Wash.App. 351 (2003)).

What makes a prenup invalid in Washington?

A prenup may be deemed invalid in Washington if it is not properly executed under the statute of frauds, or if it is one-sided, lacked proper financial disclosure, and was coupled with a lack of legal representation. (Wash. Rev. Code § 19.36.010; DewBerry v. George, 115 Wash.App. 351 (2003)). In addition, a Washington prenup may be deemed invalid if the agreement was the result of fraud, coercion, or other procedural defects.

How long before the wedding should I sign a prenup in Washington?

There is no specific mandate for when a couple must sign a prenup prior to their wedding in Washington. However, courts have suggested that parties to a prenup need enough time to review the agreement and consult with independent counsel if they want to hire one. For example, in one case (Kellar v. Estate of Kellar), the court noted that "there is nothing inherently fatal about signing a prenuptial agreement 5 days before the wedding." (Kellar v. Estate of Kellar, 172 Wash.App. 562 (2012)). However, it also noted that timing issues may come into play when a court is analyzing whether parties entered into the agreement freely and voluntarily, with legal advice and full understanding of the terms and financials.

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What can & can't be in a Washington prenup

Does cheating void a prenup in Washington?

No, cheating does not void a prenup in Washington. Infidelity in a marriage does not automatically render a prenup invalid because Washington law provides that courts must make property division and alimony awards "without regard to misconduct" (i.e., adultery/cheating) in divorces. (Wash. Rev. Code § 26.09.080). In addition, courts have routinely stated what the test for enforcing prenups is under Washington law, and nothing in it involves evaluating fidelity in the relationship. In other words, marital misconduct such as adultery is not something a court will consider when determining whether to enforce a prenup or when dividing property in a divorce.

Are infidelity clauses enforceable in Washington?

No, infidelity clauses are not enforceable in Washington prenups. According to Washington prenup attorney, Janice Killion:

Can a prenup include child custody in Washington?

No, prenuptial agreements in Washington cannot include child custody terms. This is due to Washington's "best interests of the child" standard, which requires judges to determine custody arrangements based on the best interests of the child, rather than a contract made between the parents, such as a prenup. (Wash. Rev. Code § 26.09.002). This is because what is determined by the parents in a contract may not be applicable at the time of separation, or it may not be in the child's best interest, so Washington courts will make custody and parenting plan decisions based on the circumstances that exist at the time of the divorce and what serves the child best, regardless of any provisions in a prenuptial agreement.

Can a prenup protect a business in Washington?

Yes, prenuptial agreements in Washington may protect existing or future businesses in Washington, as long as those assets are marked as separate property in the agreement. Business interests may include growth of the business, equity, debt, income, equipment, buy-outs, and more. It is important to ensure your prenup outlines all aspects of the business interests, including its growth, as separate to ensure it is protected in a divorce.

Can a prenup protect inheritance in Washington?

Yes, you can use a prenup to protect inheritances in Washington. By default, Washington law states that inheritances are actually separate property. (Wash. Rev. Code § 26.16.010). However, inherited assets or properties can be commingled or transmuted into community property, which may (in some situations) be prevented with a prenuptial agreement. By marking any future inheritances as separate property in your Washington prenup, you can help ensure that this property remains yours in a divorce.

Marital property in Washington

Is Washington a community property state?

Yes, Washington is one of the nine community property states. This means that Washington applies the community property framework when determining a divorce in the state. Community property follows the principle that all property and debt acquired during the marriage is split 50-50, regardless of who acquired it or title (with a few exceptions). This is opposed to the framework of "equitable distribution," which allows a judge to split property between spouses equitably, rather than automatically 50-50, based on things such as the length of marriage and age of the spouses.

How is property divided in a divorce in Washington without a prenup?

Washington differs slightly from other community property states in that it doesn't automatically split all community property 50-50, but divides it in a "just and equitable" manner. (Wash. Rev. Code § 26.09.080). In Washington, there is a presumption that anything (regardless of title or who bought it) acquired during the marriage is community property, that is not classified as separate property, and must be split by the court equitably. (Wash. Rev. Code § 26.16.030).

For example, in one Washington case, a couple (the Wrights) had been married for over 30 years. Dr. Wright was a successful neurosurgeon, making millions of dollars annually, while Mrs. Wright made significantly less. Upon divorce, the court awarded Mrs. Wright a $1.7 million payment and $1 million in spousal maintenance (i.e., alimony). Although the property division at the divorce appeared to favor Mrs. Wright by approximately $3.37 million, the court ultimately found that Dr. Wright would earn at least $10 million within the next 2.5 years after the divorce, so this was actually a fair distribution of assets, especially given how long the marriage was and Mrs. Wright's low earning capabilities. (In re Marriage of Wright, 179 Wash. App. 257, 319 P.3d 45 (2013)).

Does a prenup override community property in Washington?

Yes, a valid and enforceable prenup in Washington can override the community property laws of the state. Community property principles in Washington say that anything acquired during the marriage is subject to division. A prenup may override that principle and keep property acquired during the marriage separate. As long as the prenup is valid and enforceable, and the property is marked as separate property in the prenup, then it can override the laws of the state.

What is separate property in Washington?

Washington considers separate property to be property acquired before the marriage or by inheritance/gift, and the appreciation of such separate property. (Wash. Rev. Code § 26.16.010). This means that assets and debts owned before marriage, as well as property received individually through a gift or inheritance before or during the marriage, usually remain the separate property of that spouse and are not automatically subject to division in a divorce unless they are commingled with marital assets or otherwise lose their separate character.

Spousal support in Washington

Can a prenup waive alimony in Washington?

Alimony, also known as "maintenance" in Washington, is the financial support from one spouse to the other in the event of a divorce. (Wash. Rev. Code § 26.09.090). A valid and enforceable prenuptial agreement can waive maintenance in Washington if that is what the couple decides to draft in their agreement. "Waiving maintenance" simply means that neither party may ask the court to formally award financial support in a divorce. As long as the waiver is valid and enforceable, a court will uphold it.

Can a prenup prevent spousal maintenance in Washington?

Yes, it is possible for a prenup in Washington to prevent an award of spousal maintenance. The prenup must first be deemed valid and enforceable. If a prenup waiver of spousal maintenance is deemed valid and enforceable, this will override the laws of the state, and the court will not award maintenance, effectively preventing spousal maintenance.

How is alimony determined in Washington without a prenup?

Without a prenup, alimony (i.e., maintenance) is determined under Wash. Rev. Code § 26.09.090, which says a court has discretion to determine how much and for how long maintenance may be awarded. Courts may consider factors such as the financial resources of each party, the duration of the marriage, the standard of living during the marriage, the age/health of the spouses, and other factors. Unlike other states, Washington does not have a formula for determining alimony, and instead, it is a determination made through the discretion of the judge overseeing the divorce.

How much does a prenup cost in Washington?

How much does a prenup cost in Washington?

According to Washington prenup attorney, Janice Killion, "the average cost for a private firm to create a prenuptial agreement in Washington is between $1,500-$5,000 per fiancé, so a total of $3,000-$10,000. The cost swing depends on the experience of the attorney, the complexity of assets held, whether there are prior children to consider and protect, and whether the couple resides in an urban or rural area. It can certainly be more if extensive negotiations are required. One thing to consider about cost is that the average divorce costs $10,000 for each spouse, so the backend savings of having a prenuptial agreement can be quite large."

What is the cheapest way to get a prenup in Washington?

Generally, the cheapest way to get a prenup in Washington is to utilize a reputable online prenup platform. HelloPrenup offers Washington prenups for $599 flat per couple. If couples want to hire an attorney or waive alimony, that is an additional $699 per attorney, per fiancé. Hiring two attorneys for a Washington prenup is generally more expensive than going the online prenup route because prenup attorneys charge higher hourly rates.

How much does a prenup lawyer cost in Washington?

On average, a lawyer in Washington charges $346 per hour. A prenup attorney may charge more or less than that average, depending on the attorney's geographic location, experience, or education. In addition, the number of hours an attorney spends on one single prenup case varies, depending on the complexity of the finances of their client, the requests made, and the amount of negotiation time. Prenup lawyers often end up charging much less for clients with simple finances and requests.

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How to get a prenup in Washington

How do I get a prenup in Washington?

There are three main ways to get a prenup in Washington: (1) hire traditional attorneys to draft/revise the prenup, (2) use a reputable online prenup platform, or (3) use a hybrid approach and use an online prenup with attorney review. HelloPrenup offers both options (2) and (3) in Washington. You can either get a prenup without the use of attorneys, or you can hire Washington-licensed prenup attorneys for flat rates through the platform. If you are waiving alimony (i.e., maintenance) in Washington, HelloPrenup requires attorney representation to increase the likelihood of enforceability.

Can I write my own prenup in Washington?

Yes, technically, you can write your own prenup in Washington, but it is risky. Writing your own prenup can lead to ambiguous language, improper drafting, or a lack of proper formalities, leading to your agreement being thrown out in court. However, there is no legal requirement for parties to hire an attorney to draft their agreement, so it is theoretically possible to write your own prenup and have it hold up in a Washington court.

How long does it take to get a prenup in Washington?

A prenup can take a few weeks to months when using traditional attorneys to draft your prenup. The time it takes to get a prenup also depends on each partner's commitment to the prenup process. With HelloPrenup, a Washington prenup can take as little as two hours to several days to create. If you are hiring attorneys to review your HelloPrenup prenup, it can add on a few days to the process, depending on the attorneys' availability and speed in reviewing/advising you.

Do I need a lawyer to get a prenup in Washington?

No, there is no legal requirement to hire a lawyer to create a prenup in Washington. However, courts recommend legal representation to ensure both parties understand the agreement, enter into it voluntarily (without duress/coercion), and have a full understanding of the rights they may be waiving. Having a prenup lawyer can also help strengthen the enforceability of the agreement if it is later challenged in court.

Caselaw & enforceability

Are prenups enforceable in Washington?

Yes, prenups are enforceable in Washington. Washington courts routinely uphold prenuptial agreements in divorces. When a prenup is challenged, a court may analyze the prenup for proper formalities, such as being in writing and having signatures, ensuring that the agreement is fair by applying the two-step test that first asks if there is at least one clause favoring the party who is challenging the prenup. If the answer is yes, then the analysis stops there. If the answer is no, then the court asks if there was full financial disclosure, voluntariness, and legal advice. (DewBerry v. George, 115 Wash.App. 351 (2003)).

How hard is it to break a prenup in Washington?

It is relatively difficult to break a prenup in Washington without showing a lack of signatures, one-sidedness, involuntariness, and lack of proper financial disclosure. Washington courts generally favor enforcing valid prenuptial agreements and will not set aside a prenup simply because one party later regrets signing it. However, a person may "break" a prenup in Washington court if it is substantively unfair to one spouse (they have no provisions favoring them) and was not entered into with full financial disclosure and a voluntary waiver of rights.

For example, in one Washington case (Kellar v. Estate of Kellar), a wife challenged a prenuptial agreement after her wealthy husband's death, arguing that she lacked sufficient financial disclosure, time to review the agreement, and adequate legal representation. The Washington Court of Appeals ultimately upheld the prenup, finding it fair because the wife had her own attorney, her attorney negotiated terms in the prenup, and it contained an acknowledgment that both parties had received and were satisfied with financial disclosures. The court also held that signing a prenup shortly before a wedding is not automatically unfair. (Kellar v. Estate of Kellar, 172 Wash.App. 562 (2012)). As you can see from this case, it is not an easy feat to "break" a prenup when all of the safeguards are met, such as financial disclosure, fairness, and the presence of legal counsel.

Can a judge throw out a prenup in Washington?

Yes, a judge can throw out a prenup in Washington, but only under certain legal grounds. The legal grounds in which a Washington judge can throw out a prenup include the following. (DewBerry v. George, 115 Wash.App. 351 (2003)):

• Lack of proper formalities (not in writing, no signatures)
• One-sidedness
• Involuntariness
• Lack of proper financial disclosure
• Lack of proper knowledge of legal rights

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Duration & after-marriage

How long does a prenup last in Washington?

A prenup lasts forever in Washington, unless it is drafted with an expiration date. By law, prenuptial agreements don't terminate on their own. However, couples may choose to make their prenup end at a certain date. For example, HelloPrenup offers an optional clause that allows the prenup to terminate on a certain wedding anniversary. This allows the couple to choose a date on which they want default Washington law to apply to their potential divorce, rather than the terms of their prenup.

Can you get a prenup after marriage in Washington?

No, you cannot get a prenup after the wedding day in Washington; prenuptial agreements must be signed prior to marriage in order to be effective. If the wedding day has already passed, married couples in Washington may enter into postnuptial agreements, as long as they are signed, witnessed, and notarized. (Wash. Rev. Code § 26.16.120). Courts apply the same two-prong fairness test to postnups as they do to prenups. (Matter of Marriage of Cox, Not Reported in Pac. Rptr. (2019)).

Can you change a prenup in Washington?

Yes, you can change (i.e., amend) a prenup in Washington. A prenup that has been changed during the marriage is subject to the same requirements as were required for the original prenup. (In re Marriage of Bernard, 165 Wash.2d 895 (2009); Wash. Rev. Code § 26.16.250). Couples who have created a prenup may want to amend their prenup during the marriage after significant changes have occurred, such as an increase/decrease in assets, a change in lifestyle, or starting a business. These significant changes may render the original prenup ineffective according to their new goals/desires.

Cross-border & recognition

Is a prenup signed in another state valid in Washington?

Yes, Washington courts acknowledge that prenups are "conducive to marital tranquility and the avoidance of disputes about property in the future" (Matter of Marriage of Matson, 107 Wash.2d 479 (1986)). This underlying recognition and policy in Washington applies to prenups executed in other states, because Washington law does not require that a valid prenup be signed within the state's borders in order to be enforced.

In one case from 2017, a Washington Appellate Court in Herr v. Yamada had to analyze a prenup signed under California law. The court examined California's legal standards for prenups, including the requirements under California Family Code Section 1615(c) regarding voluntariness and attorney representation. While the opinion is unpublished and therefore has limited precedential value, it demonstrates that Washington courts will examine the law of the state where the prenuptial agreement was executed when evaluating such agreements.

What happens to my Washington prenup if I move to another state?

It depends on the law of the new state. Most states will honor a prenup created in another state, as long as it was executed properly under the original state's laws. However, whether or not the new state applies Washington substantive law to interpret the underlying terms and meanings of the agreement will depend on each individual state's laws and policies. For example, some states may decline to apply foreign substantive law to a prenup, whereas other states may apply foreign substantive law to the divorce.