Washington: C-
Statutes
RCW 19.36.010
Separate Property
All assets can remain separate property, avoiding costly divorce settlements. Joint assets and debts titled in both names are split 50/50 as marital property.
Procedural and Substantive “Fairness"
Washington courts take two looks at a prenup: once at the moment it was created (substantive fairness) and again at the moment it's being enforced (procedural fairness). This dual look means a prenup may be invalidated if circumstances change significantly during marriage or the parties’ commingle assets instead of keeping them in separate names.
Unconscionability Standard – Two Prong Test
A prenup is valid if: (1) it makes fair and reasonable provision for the spouse not seeking enforcement, OR (2) there was full property disclosure AND voluntary execution with independent advice and full knowledge of rights. Agreements eliminating community property rights face "zealous" scrutiny for fairness.
Spousal Support - No Bright Line, Likely Higher than Most States
Complete waivers of spousal maintenance are generally unenforceable. Courts may enforce terms regarding type, amount, and duration of support, but total waivers face heavy scrutiny, especially if one-sided or not followed during marriage.
Timing
No statutory deadline exists, but we recommend signing 60+ days before the wedding with 2-3 weeks review time to reduce challenge risk. Reach out to an attorney 4-6 months before the wedding.
Independent Counsel
Effectively required. Each party's attorney should certify their client understood terms and signed voluntarily. Lack of independent counsel can create a presumption the agreement was involuntary and therefore void.
Financial Disclosure
Full disclosure of all assets, debts, and income is required. This cannot be waived.
Low Burden to Challenge
The enforcing party bears the burden of proving validity and that the agreement was strictly observed during marriage. This makes it very easy to challenge a prenuptial agreement, as the party seeking enforcement is the one who must prove its validity.
Child Support
Child support and custody clauses are unenforceable and could undermine the entire agreement. Do not include.
Case Law
In re Marriage of Bernard, 165 Wash.2d 895 (2009)
Prenup invalidated as both substantively and procedurally unfair where husband worth $25 million married operations manager worth $8,000, agreement limited her to half her salary and $100,000 of his earnings as community property while eliminating her inheritance rights and spousal maintenance, and she received substantially different draft just 3 days before wedding with insufficient time for attorney review.
In re Marriage of Matson, 107 Wash.2d 479 (1986)
Prenup voided where husband worth $330,000-$830,000 married secretary with only personal effects, agreement was presented 4 days before wedding and signed on eve of wedding without independent counsel (used husband's attorney), and wife received no copy of the agreement.
In re Estate of Crawford (1986)
Prenup invalidated where wife saw first draft just 3 days before wedding, received no provision for divorce or death, was not given full disclosure of husband's property value, and was not afforded opportunity to obtain independent legal advice.
In re Marriage of Foran, 67 Wash.App. 242 (1992)
Trial court invalidated prenup for procedural unfairness where husband and attorney worked on agreement for over a month but did not provide it to wife until two days before the parties left for their wedding trip.
In re Marriage of Berg
Trial court invalidated prenup for procedural unfairness where wife had only 30 minutes to evaluate the agreement with just 5 days between receiving the draft and signing date.
Kellar v. Estate of Kellar, 172 Wash.App. 562 (2012)
Court of Appeals upheld prenup as procedurally fair despite significant wealth disparity (husband worth $15-93 million, wife earned $20-25,000 as waitress) and agreement being signed 5 days before wedding, noting "there is nothing inherently fatal about signing a prenuptial agreement 5 days before the wedding."
In re Marriage of DewBerry, 115 Wash.App. 351 (2003)
Oral prenuptial agreement upheld where both well-educated working professionals agreed income and property would be separate, they continually affirmed agreement through meticulous effort to maintain separate finances during marriage, and court found "nothing unfair about two well-educated working professionals agreeing to preserve the fruits of their labor."
In re Marriage of Ressa
Trial court upheld prenup even though topic was broached for first time just two weeks before wedding, finding parties made informed decisions despite short timeframe.