A postnuptial agreement is a written contract between spouses, signed after the wedding, that changes how Washington’s community property rules apply to their property, earnings and debts. Holmes Law prepares and reviews these agreements as a Washington postnuptial agreement attorney for married couples and registered domestic partners throughout the state. Common reasons include a spouse starting or buying into a business, a large inheritance, a move to Washington from another state, a second marriage, or a couple who never signed a prenup and wants clarity now.
In Washington, Holmes Law’s family law practice is limited to marital agreements, meaning prenuptial and postnuptial agreements. Holmes Law does not handle Washington divorces, legal separations, custody cases, support modifications or other contested family law matters; those require separate family law counsel. (Idaho is different: Holmes Law offers full-service family law there.) Michael Holmes is admitted in Washington and works with clients remotely. This page goes deeper on the postnuptial agreement; for the broader overview, see Washington marital agreements. It is general information, not legal advice for your situation.
The Legal Landscape: No Postnuptial Statute in Washington
Washington has no statute that specifically governs agreements between spouses in an intact marriage. The state has not adopted the Uniform Premarital Agreement Act or any uniform marital agreements act. RCW 26.09.070 addresses separation contracts, which are made by spouses who are separating or seeking a dissolution, and provides that such a contract is binding on the court unless it finds the contract was unfair at the time of its execution. That statute does not cover a postnuptial agreement signed by a couple who intend to stay married.
The Washington Supreme Court has not squarely set the enforcement standard for a mid-marriage agreement in an intact marriage. Washington courts evaluating marital agreements draw on the framework from Friedlander v. Friedlander, 80 Wn.2d 293 (1972), In re Marriage of Matson, 107 Wn.2d 479 (1986), and In re Marriage of Bernard, 165 Wn.2d 895 (2009), which were decided in the prenuptial context. Holmes Law drafts postnuptial agreements on the assumption that they will be scrutinized at least as closely as a prenuptial agreement, and that it would be unwise to assume they are easier to enforce.
The Good Faith Burden Under RCW 26.16.210
Spouses stand in a relationship of trust. Washington codifies an important consequence of that relationship in RCW 26.16.210: in every case where a question arises about the good faith of a transaction between spouses, whether direct or not, the burden of proof is on the party asserting the good faith. A spouse who benefits from a postnuptial agreement should therefore expect to prove that the agreement was fair and freely made.
That burden is the reason the process matters so much. Under the Matson framework, as applied in Bernard, an agreement that is not substantively fair can be enforced only if the party seeking to enforce it shows full disclosure of the amount, character and value of the property involved, and that the other spouse entered into it fully and voluntarily, on independent advice, and with full knowledge of his or her rights. Fairness is measured at the time of execution. A careful postnuptial agreement is built to satisfy both prongs.
Why Couples Sign Postnuptial Agreements in Washington
Protecting separate property from a just and equitable division
Under RCW 26.09.080, a Washington court in a dissolution divides property “either community or separate” in a just and equitable manner, without regard to misconduct. A spouse’s pre-marriage home, inheritance or business interest can be awarded to the other spouse. A postnuptial agreement can confirm that specified assets are, and will remain, separate property.
Clarifying the status of a business or appreciation
Washington generally treats rents, issues and profits of separate property as separate under RCW 26.16.010 and 26.16.020. But where community labor is combined with separate real estate or an unincorporated business, Hamlin v. Merlino, 44 Wn.2d 851 (1954), and In re Marriage of Elam, 97 Wn.2d 811 (1982), can make the income community unless it is contemporaneously segregated, and the community may have a right of reimbursement. A postnuptial agreement can define how salary, retained earnings and growth in the business will be treated going forward, and can coordinate with a business’s operating or buy-sell agreement.
Converting separate property to community, or community to separate
Some couples want the opposite result: to make everything community. Washington permits spouses to convey property to each other; under RCW 26.16.050, either spouse may convey directly to the other his or her community interest in community real property, which then becomes the grantee’s separate property. The statute also provides that such transfers do not affect existing equities in favor of creditors. A deed alone can create uncertainty, however, and a written agreement explaining the intent is stronger evidence. Couples moving to Washington from a common law state often use a postnuptial agreement to decide how their existing assets will be characterized.
After a financial event or a reconciliation
Postnuptial agreements are often signed after a major financial event, such as a sale of a business, an inheritance, a large gift from a parent, or after a period of marital difficulty. A reconciliation agreement can be valuable, but it is also where the pressure is greatest, and it deserves the most careful process.
Separation, Reconciliation and the Line Between Postnups and Separation Contracts
The timing of a marital agreement affects which rules apply. When spouses are living separate and apart, RCW 26.16.140 provides that their respective earnings and accumulations are the separate property of each. Whether a couple was “living separate and apart” is a factual question that Washington courts decide by looking at whether the marriage was defunct, not simply whether the spouses had separate addresses. A postnuptial agreement can remove that uncertainty by stating how earnings during any future period of separation will be treated.
If the spouses are already separating and resolving their property and support issues in anticipation of dissolution or legal separation, the agreement is likely a separation contract under RCW 26.09.070, reviewed for fairness at the time of execution in the dissolution case. That is contested family law territory, and in Washington it is outside the scope of Holmes Law’s practice. Holmes Law’s work is agreements for couples who intend to remain married, including couples who have reconciled after a separation and want to put their financial arrangements in writing.
Reconciliation agreements deserve particular care. One spouse may feel that signing is the price of saving the marriage, which is exactly the kind of pressure a court will examine when the benefited spouse tries to prove good faith under RCW 26.16.210. Separate counsel, complete disclosure, reasonable time and terms that remain fair to both spouses are the best protection. An agreement that is balanced is also more likely to support the reconciliation it was meant to accompany.
Community Property Agreements Are Different
Washington has a separate statutory instrument that many couples confuse with a postnuptial agreement. Under RCW 26.16.120, spouses can enter into a community property agreement concerning the status or disposition of their property to take effect at the death of either spouse. The classic form declares all property community and passes it to the survivor.
A community property agreement is a death-effective instrument, not a divorce planning tool. It must be executed with the formalities of a deed. Recording is best practice, though the statute does not make recording a condition of validity. In re Estate of Bachmeier, 147 Wn.2d 60 (2002), holds that a community property agreement is terminated only by mutual assent or a final dissolution decree; a unilateral inconsistent will does not revoke it, and separation alone does not end it. RCW 11.11.010(7)(a)(iv) excludes community property agreements from the superwill statute, so a later will cannot use the superwill statute to redirect assets the agreement governs.
The practical danger is the forgotten community property agreement. Couples who signed one decades ago and later created a trust-based plan can find that the old agreement sweeps everything to the survivor, defeating the trust. When Holmes Law prepares a postnuptial agreement, reviewing and, if appropriate, rescinding an existing community property agreement by mutual written agreement is part of the process. See Washington trusts for how these instruments fit into a trust-based plan.
What a Washington Postnuptial Agreement Can Include
- A schedule of each spouse’s separate property and the community property as of signing, with values.
- Characterization of future earnings, business income, retirement contributions and appreciation.
- Treatment of contributions from one estate to another, including whether they create a right of reimbursement.
- Allocation of debts, including business and tax liabilities.
- Ownership of the family residence and any vacation or rental property.
- Terms for property division if the marriage ends, which a court will review under the fairness framework described above.
- Rights at death, coordinated with wills, trusts and beneficiary designations.
Maintenance and children
Whether a Washington postnuptial agreement can waive maintenance under RCW 26.09.090 in an intact marriage is not settled by controlling authority, and any such provision should be drafted conservatively. No marital agreement can bind a court on child support, which is set under the schedule in chapter 26.19 RCW, or on parenting arrangements, which turn on the child’s best interests.
How a Washington Postnuptial Agreement Attorney Builds the Process
Because the benefited spouse bears the burden of proving good faith, the process should be designed with a future challenge in mind:
- Full disclosure. Each spouse lists assets, debts and income, with values and supporting documents. Even though spouses share a household, one spouse often does not know the details of the other’s business, trusts or accounts. Disclosure should be written and attached to the agreement.
- Independent counsel. Each spouse should have his or her own Washington lawyer. Holmes Law represents only one spouse. A single lawyer acting for both creates a conflict and weakens the agreement.
- Time to consider. There is no statutory waiting period, but Bernard shows how compressed timing undermines an agreement. Drafts should be exchanged well before signing.
- Fair terms. An agreement that leaves one spouse with little and was signed under pressure is exactly the agreement a court is most likely to decline to enforce.
- Formal execution. The agreement should be in writing, signed and acknowledged, and deeds should be prepared for any real property whose character changes.
- A clean record. Each lawyer should keep the drafts, the disclosure schedules and a record of the advice given. If the agreement is ever challenged, years later, those documents are often the only reliable evidence of how carefully it was made.
Retirement Plans and Beneficiary Designations
A postnuptial agreement can say who is entitled to a retirement account, but plan rules still control the plan. Under 26 C.F.R. § 1.401(a)-20, Q&A-28, spousal consent to waive survivor benefits in a qualified plan must be given by the spouse on the plan’s own form, meeting federal requirements. The agreement should require the necessary plan waivers and beneficiary changes to be signed, and those should be completed at the same time. Individual retirement accounts, life insurance and transfer on death accounts also need beneficiary designations that match the agreement. See Washington estate planning for coordination.
Reviewing an Existing Prenuptial Agreement
A postnuptial agreement is also the tool for amending or revoking a prenuptial agreement. Couples sometimes discover that the prenup they signed years ago no longer reflects their circumstances: children have arrived, one spouse left work to raise them, or the business the prenup protected has been sold. An amendment signed with the same care as the original can update the terms and reduce the chance of a dispute later. If you are not yet married, see Washington prenuptial agreements.
Frequently Asked Questions
Are postnuptial agreements enforceable in Washington?
They can be, but Washington has no statute governing postnuptial agreements in an intact marriage, and the Washington Supreme Court has not squarely set the standard. Courts draw on the Matson fairness framework, and RCW 26.16.210 puts the burden of proving good faith on the spouse who benefits.
Is a postnuptial agreement the same as a separation contract?
No. A separation contract under RCW 26.09.070 is made by spouses who are separating or seeking dissolution. A postnuptial agreement is signed by spouses who intend to remain married.
Is a community property agreement a postnuptial agreement?
No. A community property agreement under RCW 26.16.120 takes effect at death and usually passes property to the survivor. It does not govern divorce and is terminated only by mutual assent or a final dissolution decree.
Can one lawyer prepare the agreement for both of us?
Holmes Law represents one spouse only. Independent counsel for each spouse is part of what makes an agreement defensible.
Can a postnuptial agreement change what my spouse receives from my 401(k)?
Only if the plan’s own spousal waiver requirements are also met. The agreement should require the waiver forms to be signed.
We signed a prenup. Can we change it now?
Yes, by a written postnuptial agreement that amends or revokes it, prepared with full disclosure and separate counsel.
Speak With a Washington Postnuptial Agreement Attorney
Because Washington places the burden of proving good faith on the spouse who benefits, a postnuptial agreement is only as strong as the process behind it. Holmes Law can prepare or review your agreement, review any old community property agreement, and coordinate the result with your estate plan. Contact Holmes Law to schedule a consultation with Michael Holmes about a Washington postnuptial agreement.