What makes a prenuptial agreement valid in Washington State?
Washington courts consider both the terms of the agreement and how it was negotiated and signed. Financial disclosure, fairness, adequate time for review, and the opportunity to obtain independent legal advice can all be important to whether a prenup will ultimately be enforced.
The highly publicized prenuptial agreement between Kim Kardashian and Kanye West provides a useful example of how these issues can arise. Although their divorce took place in California, their prenup illustrates many of the safeguards that are important when preparing a prenuptial agreement in Washington.
What is a Prenuptial Agreement?
A prenuptial agreement, also called a premarital agreement or prenup, is a written agreement entered between two people who plan to marry. It can establish the parties’ financial rights and responsibilities during marriage. It can also determine how property, debts, earnings, and other financial matters will be treated if the marriage ends.
For example, a prenup may provide that earnings during marriage will remain the separate property of the spouse who earns them, rather than becoming community property. It may also establish how jointly acquired property will be owned and divided. Without a prenuptial agreement, Washington law generally presumes that property acquired during marriage is community property, subject to important exceptions such as property acquired by gift or inheritance and property that otherwise retains its separate character.
How Washington Courts Determine Whether a Prenup is Enforceable?
In Washington State, if a spouse challenges the validity of a prenuptial agreement, the spouse seeking enforcement has the legal burden to show it’s enforceable using a two-pronged test:
- Is the agreement economically (or “substantively”) fair? If it is, the prenuptial is valid and the challenge ends. If not, then,
- Is the agreement “procedurally” fair?
An agreement that is economically unfair may still be enforceable if the agreement is entered with certain legal safeguards to make sure the spouse knew what he or she was signing and did so voluntarily.
The same two-pronged test applies to cohabitation and postnuptial agreements.
Is the Prenuptial Agreement Economically Fair?
Economic fairness depends on the agreement’s terms and the parties’ financial circumstances when they marry. There is no simple mathematical test. Courts may consider such things as the parties’ respective financial circumstances, restrictions on the creation of community property, limitations on property rights, waivers or limitations of maintenance, and the overall economic effect of the agreement.
A prenuptial agreement does not become invalid simply because one spouse receives greater financial protection than the other. Prenups exist in part to change rights the parties would otherwise have under Washington law. But the greater the departure from those rights, particularly when the parties have substantially different economic circumstances, the more important the circumstances surrounding the agreement may become.
For that reason, a prenuptial agreement that significantly modifies Washington community property or support rights should be prepared with careful attention to procedural fairness.
Was the Prenuptial Agreement Procedurally Fair?
Even if a prenuptial agreement is substantively unfair, it may still be enforceable if it was procedurally fair when the parties entered into it. An agreement is procedurally fair if:
- Full Financial Disclosure. Each party should receive full disclosure of the amount, value, and character of the other’s property, income, liabilities, and financial circumstances.
- Voluntary Agreement. Each party should enter the agreement freely and voluntarily, without duress, fraud, undue pressure, or coercion.
- Adequate Time for Review. A prenup should not be presented for the first time immediately before the wedding. Allowing sufficient time for review, discussion, negotiation, and revision helps show that both parties had an opportunity to consider the agreement before signing.
- Independent Legal Advice. Each party should have an opportunity to obtain advice from an attorney of their own choosing. Separate representation helps ensure that each person understands the agreement, the rights being changed or waived, and the legal consequences of signing it.
What Can Cause a Prenuptial Agreement to Be Challenged?
A spouse may challenge a prenuptial agreement for a number of reasons. Depending on the circumstances, potential problems can include:
- incomplete or misleading financial disclosure;
- fraud or material misrepresentations;
- pressure, coercion, or duress;
- presenting the agreement too close to the wedding without adequate time for meaningful review;
- lack of a meaningful opportunity to obtain independent legal advice;
- lack of mental capacity to understand the agreement;
- terms or circumstances that make the agreement legally unconscionable; or
- other grounds that would make the agreement invalid under applicable contract law.
Does Each Person Need a Lawyer for a Washington Prenup?
Independent legal representation is one of the most important safeguards when preparing a prenuptial agreement. Independent legal representation is one of the most important safeguards when preparing a prenuptial agreement. The attorney who prepares the agreement represents only that attorney’s client, so the other future spouse should have sufficient time and a meaningful opportunity to consult with a separate attorney.
Separate counsel can help each party understand the agreement, identify the rights being changed or waived, and negotiate proposed terms before signing. Although the effect of proceeding without separate counsel depends on the circumstances, independent representation can substantially reduce later disputes over whether the agreement was knowingly and voluntarily entered into.
How Soon Before the Wedding Should a Prenup Be Signed?
Washington law does not establish a simple rule that a prenuptial agreement automatically becomes invalid if it is signed within a particular number of days before the wedding.
Timing nevertheless matters.
A last-minute agreement may raise questions about whether a party had a realistic opportunity to review the terms, obtain independent advice, negotiate changes, and make a voluntary decision about whether to sign.
The better practice is to begin the process well before the wedding. That allows time for financial disclosure, attorney review, discussions between the parties, negotiation of disputed provisions, and preparation of a final agreement without unnecessary pressure from an approaching wedding date.
What the Kim Kardashian and Kanye West Prenup Illustrates
The prenuptial agreement between Kim Kardashian and Kanye West attracted significant attention during their divorce proceedings. According to a published report discussing and reproducing portions of their 2014 prenuptial agreement, the agreement provided that income earned during the marriage, and property acquired with that income, would generally remain the separate property of the person who earned it.
Property intentionally acquired jointly could instead be treated as jointly owned. Those types of provisions are also common in Washington State prenuptial agreements, where parties may agree to alter the community-property rights that would otherwise arise during marriage.
The publicly reported provisions of the Kardashian-West agreement also illustrate several safeguards commonly used to support enforceability:
- Financial Disclosure. The agreement referenced financial disclosures concerning each party’s assets, debts, and income.
- Time Before the Wedding. Kim and Kanye signed the agreement well before the wedding, providing time for review and negotiation.
- Independent Attorneys. Separate attorneys represented each party during the preparation and negotiation of the agreement.
- Written Acknowledgments. The agreement included acknowledgments concerning disclosure, voluntariness, legal representation, and the parties’ understanding of its terms.
Those provisions do not by themselves guarantee that an agreement will be enforced. A court can examine the actual circumstances surrounding its negotiation and signing. They do, however, illustrate why disclosure, adequate time, independent legal advice, and careful documentation are important when preparing a prenuptial agreement.
How to Improve the Enforceability of a Washington Prenuptial Agreement
Couples considering a prenup can reduce the likelihood of a later dispute by following a careful process:
- Start early. Do not wait until the wedding is approaching to begin discussing or drafting the agreement.
- Provide complete financial information. Disclose significant assets, liabilities, income, and other relevant financial information before signing.
- Use separate attorneys. Each person should obtain legal advice from an attorney who represents only that person’s interests.
- Allow time for negotiation. A prenup should be a process, not simply a document presented for signature.
- Understand the agreement. Each party should understand how the agreement changes the financial rights that would otherwise apply under Washington law.
- Document agreed changes carefully. The final written agreement should accurately reflect the terms the parties actually intend to follow.
A thoughtfully prepared agreement cannot prevent every future challenge, but following these safeguards can make a significant difference if enforceability is later disputed.
Get Help With Your Washington Prenuptial Agreement
A well-prepared prenuptial agreement can provide greater certainty about property, earnings, debts, and other financial rights during marriage and in the event of separation, divorce, or death.
Weintraub Law Office, PLLC assists clients with the preparation and review of prenuptial agreements in Seattle, Bellevue, and throughout King and Snohomish Counties. Our goal is to help clients develop clear agreements through a careful and cooperative process while taking the steps necessary to support enforceability under Washington law.
Call 425-374-4045 or Schedule a Consultation to discuss a Washington prenuptial agreement.