Holmes Law drafts prenuptial agreements, postnuptial agreements and community property agreements for couples in Washington. In Washington the family law practice is limited to marital agreements — contested dissolution, parenting and support matters are referred to counsel who appear in those courts regularly. Full-service family law is handled in Idaho. The scope is set out on the family law page.
Washington is unusual in two ways that matter enormously to anyone with premarital or inherited assets, and neither is widely understood outside the state.
Washington Has Not Adopted the Uniform Premarital Agreement Act
Roughly half the states have enacted a version of the Uniform Premarital Agreement Act, which supplies a statutory formation and enforcement framework. Washington has not. Title 26 of the Revised Code of Washington contains a number of other uniform acts — the Uniform Parentage Act, the UCCJEA, the Uniform Interstate Family Support Act, the Uniform Family Law Arbitration Act — but no premarital agreements chapter, and no version of the later Uniform Premarital and Marital Agreements Act either.
There is, in other words, no Washington statute that tells you what makes a prenuptial agreement valid. The validity rules come from case law, and they are more demanding than the uniform act.
The consequence in practice is that a form agreement drafted to the uniform act — which is what most national templates and most out-of-state counsel produce — can satisfy every requirement it was written for and still fail in Washington.
The Washington Test: Matson and Bernard
Washington courts apply a two-prong analysis that originates in Friedlander v. Friedlander, 80 Wn.2d 293 (1972), and was set out in In re Marriage of Matson, 107 Wn.2d 479 (1986). The Supreme Court restated and applied it in In re Marriage of Bernard, 165 Wn.2d 895 (2009).
Prong one: is the agreement substantively fair?
If the agreement makes a fair and reasonable provision for the spouse who is not seeking to enforce it, the analysis stops there and the agreement is enforceable. Many agreements never get past this prong, which is the cheapest place to win.
Prong two: was it entered into fairly?
If the agreement is not substantively fair, the court asks whether the spouses made a full disclosure of the amount, character and value of the property involved, and whether the agreement was freely entered into on independent advice from counsel, with both spouses having full knowledge of their rights. If that second prong is satisfied, an otherwise unfair division is valid and binding.
Two features of this framework deserve emphasis because they run against the assumptions people bring from other states.
- The burden is on the spouse seeking to enforce the agreement, not the one attacking it. That is the reverse of the uniform-act states, where the challenger carries the burden.
- Fairness is measured at the time of execution. In Bernard the court adhered to the settled rule that validity is based on the circumstances surrounding execution, and declined an invitation to move the fairness inquiry to the time of enforcement.
Three words in prong two do a great deal of work: amount, character and value. A schedule that lists assets by name without values does not satisfy it. In a community property state, character — whether an asset is separate or community, and why — is its own disclosure obligation, separate from the number attached to it.
Bernard is also a useful lesson in timing. A working draft reached the wife eighteen days before the wedding; her attorney received a substantially revised version only days before; and counsel could do no more than hit the high points. A later amendment did not cure the problem, because the scope of negotiation had been so limited. Washington has no statutory waiting period — there is no uniform act to supply one — which means there is also no safe harbour. Months, not weeks, and keep the timeline documented.
The Second Washington Surprise: Separate Property Is Not Safe
This is the strongest single argument for a Washington prenuptial agreement, and most people have never heard it.
RCW 26.09.080 directs the court, in a dissolution, to make a disposition of the property and liabilities of the parties — either community or separate — as appears just and equitable, without regard to misconduct, after considering the nature and extent of the community property, the nature and extent of the separate property, the duration of the marriage, and the economic circumstances of each spouse.
Read those four words again: either community or separate. A Washington court has statutory authority to award one spouse’s separate property to the other. Separate character is a factor the judge weighs, not a wall around the asset. A house you owned for a decade before the marriage, an inheritance from your parents, a business you built before you met — all of it is within the court’s reach.
Characterisation alone does not protect an asset in Washington. Only an agreement does. (The same provision also settles a question clients ask constantly: infidelity is legally irrelevant to the division, because the statute says “without regard to misconduct.”)
Washington’s Community Property Rules, and the Tracing Problem
RCW 26.16.010 and 26.16.020 provide that property owned before marriage, or acquired afterwards by gift, bequest, devise, descent or inheritance, together with the rents, issues and profits thereof, is separate property. RCW 26.16.030 makes everything else acquired during the marriage community property.
That “rents, issues and profits” language is a genuine difference between Washington and its neighbours. Washington follows what is sometimes called the American rule: income from separate property stays separate. Idaho and Texas follow the Spanish rule, under which income earned during the marriage from separate property is community. A couple who moves from Boise to Seattle, or from Seattle to Dallas, changes the character of their income stream without signing anything.
The rule has a large exception that swallows many real cases. Under Hamlin v. Merlino, 44 Wn.2d 851 (1954), quoted in In re Marriage of Elam, 97 Wn.2d 811 (1982), where separate property is real estate or an unincorporated business into which personal services belonging to the community have been combined, all the income or increase is treated as community property absent a contemporaneous segregation of the income between the community and separate estates. And where community funds or labour improve separate property, the community acquires an equitable lien or right of reimbursement extending to a share of the increase in value.
So the separate-income rule protects a passive portfolio. It does not protect a separately owned business that one spouse spends the marriage running. That is the fact pattern most clients actually present with, and it is the reason to put the characterisation in writing at the outset rather than reconstruct it from a decade of bank statements.
Community Property Agreements: a Different Instrument, and a Real Trap
RCW 26.16.120 permits both spouses to enter into an agreement about the status or disposition of their community property, then owned or afterwards acquired, to take effect upon the death of either. The instrument must be in writing, signed, and witnessed, acknowledged and certified in the same manner as a deed to real estate.
A community property agreement is not a prenuptial agreement and is not a substitute for one. The differences are worth stating side by side:
- A prenuptial agreement is signed before marriage, is aimed at dissolution, is judged under the Matson analysis, and normally works to preserve separate character.
- A community property agreement is a statutory instrument, can be signed at any time during the marriage, takes effect only at death, is a probate-avoidance device, and works in the opposite direction — it destroys separate character and vests everything in the survivor.
The common form has three provisions: all property currently owned by either or both spouses is community property; all property acquired hereafter is community property; and on the first death, all of it vests in the survivor. It is simple, cheap and effective at avoiding probate. It is also, for that reason, dangerous.
A later will does not override it
Washington treats a community property agreement as a nonprobate asset. But the statute that otherwise lets a will control the disposition of nonprobate assets, RCW 11.11.010(7)(a)(iv), expressly excludes a right or interest passing under a community property agreement. The ordinary mechanism by which a will reaches a nonprobate asset is simply unavailable.
And in In re Estate of Bachmeier, 147 Wn.2d 60 (2002), the Supreme Court held that a community property agreement is terminated only by the mutual assent of both spouses or by a final decree of dissolution disposing of the property. Unilateral acts inconsistent with the agreement do not rescind it. Separation does not. Filing a dissolution petition does not.
The failure mode writes itself. A couple signs a community property agreement in the 1990s, forgets about it, and later builds a trust-based estate plan with a credit shelter trust and gifts to children from a prior marriage. At the first death the agreement sweeps everything to the survivor outright, the trust is never funded, and the children take nothing. A separated couple with a stale agreement and no decree yet entered has the same problem in sharper form.
The escape valve is narrow. RCW 26.16.120 preserves the superior court’s power to set aside such an agreement for fraud or under some other recognised head of equity jurisdiction, and In re Estates of Wahl, 99 Wn.2d 828 (1983), shows one route where an agreement and a will executed together conflict. It is far cheaper to find the agreement while everyone is alive.
Washington also imposes its own estate tax at a threshold below the federal exemption, with no portability between spouses, so an agreement that vests everything in the survivor outright can waste the first spouse’s state exclusion entirely. Figures change; the structural point does not. See Washington estate planning.
Postnuptial Agreements in Washington
Washington law here is thinner than clients expect, and it is better to say so than to imply a certainty that does not exist.
There is no Washington statute authorising a general postnuptial agreement for an intact marriage. RCW 26.09.070 governs separation contracts, but by its terms it is available to parties acting to promote the amicable settlement of disputes attendant on their separation or on the filing of a dissolution petition. A postnuptial agreement for a healthy, ongoing marriage sits outside it.
What fills the gap is analogy. Courts apply the Matson-type fairness analysis; RCW 26.16.210 provides that in any question about the good faith of a transaction between spouses, the burden of proof is on the party asserting good faith; and under In re Marriage of Mueller, 140 Wn. App. 498 (2007), following Kolmorgan v. Schaller, 51 Wn.2d 94 (1957), a spouse seeking to enforce an agreement converting community property into separate property must establish by clear and convincing evidence both the existence of the agreement and that the parties mutually observed its terms throughout the marriage.
That last requirement is distinctively Washington and it is where good agreements go to die. Signing the document is the beginning of compliance, not the end of it. If the agreement says an account is separate and the couple then deposits paychecks into it, pays the mortgage on a separate house from the joint account, or retitles property inconsistently, the agreement can fail on conduct alone. Drafting has to be followed by a plan for living with it.
Where RCW 26.09.070 does apply, it is powerful: a separation contract is binding on the court unless the court finds it was unfair at the time of execution — a materially easier standard than the Matson prongs. Parenting plan terms are excluded, child support is separately reviewed against the state guidelines, and the decree may expressly preclude or limit modification of maintenance.
Practical Points That Come Up Constantly
- Community real property needs both signatures. RCW 26.16.030(3) requires both spouses to join in and acknowledge any instrument selling, conveying or encumbering community real property. An agreement that recharacterises real property without a conforming deed leaves a title problem behind it.
- The interspousal deed route. RCW 26.16.050 provides that a deed from one spouse to the other divests the real estate of any claim as community property and vests it in the grantee as separate property, with the grantor signing as a single person.
- Oral agreements are entertained in Washington. Courts will listen to an argument that spouses later agreed otherwise, judged by the same clear and convincing standard. A written agreement should therefore contain an explicit integration clause and a written-amendment-only clause.
- Quasi-community property is a death concept in Washington. RCW 26.16.220 is framed by reference to a decedent. Couples relocating from a common-law state should not assume a dissolution-side fix exists; relocation is a good moment for an agreement.
- Retirement plan survivor benefits. Federal law governs, and under 26 C.F.R. section 1.401(a)-20, Q&A-28 a consent given in a premarital agreement does not satisfy the spousal consent requirements for a qualified plan. The waiver must be signed by the spouse, after the marriage, on the plan’s own form.
- Children. Child support and parenting arrangements cannot be fixed by agreement in a way that binds the court.
If You Signed Somewhere Else, or You Are Moving
Washington is the state where an out-of-state agreement is most likely to disappoint, precisely because it has no uniform act. An agreement drafted in Texas or North Carolina to satisfy a statutory checklist can arrive in a Washington court and be measured against a substantive fairness prong its drafter never contemplated, with the burden on the spouse trying to enforce it.
Moving into Washington is the moment to have the agreement reviewed. Moving out is the moment to check whether the community property agreement you signed for probate purposes still fits. This firm is admitted in Idaho, California, Texas, Washington, North Carolina and Massachusetts: California, Texas, North Carolina, Massachusetts, and Idaho.
How These Agreements Fail in Washington
- A uniform-act form used in a non-uniform-act state. Compliance with a checklist Washington never adopted proves nothing here.
- Disclosure that omits value or character. All three of amount, character and value are required.
- No independent counsel on both sides. The second prong asks in terms whether the agreement was freely entered on independent advice, and Bernard shows that the quality of that advice matters too.
- A compressed timeline. No statutory waiting period means no safe harbour either.
- Conduct inconsistent with the agreement. The mutual-observance requirement is clear and convincing, and it runs for the whole marriage.
- A forgotten community property agreement quietly overriding a later estate plan.
- Real property recharacterised on paper without a conforming deed.
Frequently Asked Questions
Is a prenuptial agreement even enforceable in Washington without a statute?
Yes. Washington courts enforce prenuptial agreements; they simply do it under case law rather than a statutory framework, and the standard is more searching than in uniform-act states. A well-drafted, well-disclosed, well-timed agreement with independent counsel on both sides is enforceable.
How long before the wedding should we sign?
There is no statutory minimum. Bernard suggests eighteen days was not enough where the operative draft arrived days before the ceremony. Plan on months, start before the invitations, and keep a record of when each draft was sent.
Can a Washington prenuptial agreement waive spousal maintenance?
Maintenance provisions are commonly included, but Washington has no statute on the point and no controlling decision settling whether and when such a waiver will be enforced. The honest answer is that it is a less certain proposition here than in Texas, and it should be drafted with that uncertainty in view rather than copied from a Texas form.
We already signed a community property agreement. Do we still need a prenuptial or postnuptial agreement?
They do different jobs. A community property agreement operates only at death and makes everything community. It does nothing at dissolution, and it may actively conflict with an estate plan built later. Having one is not a reason to skip the other; it is a reason to read both together.
Does a community property agreement have to be recorded?
The statute requires execution formalities matching a deed — writing, signature, witnessing, acknowledgment and certification — but it does not by its terms require recording. Recording is sound practice for clearing title to real property at the first death, and it should be treated as a practical step rather than a validity requirement.
My inheritance is separate property. Isn’t that enough?
No. RCW 26.09.080 lets the court divide separate property as well as community property. Separate character is a factor, not a shield. This is the most common misunderstanding in Washington and the clearest reason to put an agreement in place.
Talk to Holmes Law
Holmes Law is a solo practice. The attorney who takes your call is the one who drafts the agreement, and Washington agreements are drafted to the Washington standard rather than to a national form. If you are engaged, already married, holding an agreement signed in another state, or you have found a community property agreement nobody remembers signing, that is the conversation to have.
Call the Washington line at (206) 279-4780 or use the Washington contact page.