PRENUPTIAL AGREEMENTS—FAIRNESS, REASONABLE, FULL DISCLOSURE

Prenuptial agreements—commonly called “prenups”—are legal contracts entered into by two people before marriage that outline how assets, debts, and financial matters will be handled during the marriage and in the event of divorce. While sometimes viewed as unromantic, prenups are increasingly recognized as practical tools for financial clarity, risk management and some certainty.

In Washington State, prenuptial agreements are valid and enforceable when properly drafted, but they are governed by a unique legal framework that differs from many other states.

Washington Is a Community Property State

Washington is a community property State, meaning that most property and debts acquired during marriage are presumed to be jointly owned by both spouses.

A prenuptial agreement allows couples to override these default rules by:

• Defining what remains separate property
• Determining how assets and debts will be divided
• Protecting business interests, inheritances, or premarital wealth
• Spousal support considerations

Without a prenup, courts divide property in a way that is “just and equitable,” which may not always mean a 50/50 split.

Requirements for a Valid Prenuptial Agreement

To be enforceable in Washington, a prenup must meet several core requirements:

Formal Requirements

• Must be in writing
• Signed by both parties
• Typically notarized or formally acknowledged

Substantive Requirements

• Full financial disclosure by both parties (assets, debts, income)
• Terms must be fair and reasonable
• Agreement must be entered voluntarily, without coercion or fraud 

Best Practices (Not strictly required but strongly recommended)

• Each party has independent legal counsel
• Agreement is signed well before the wedding
• Clear documentation of full disclosure and intent

Failure to meet these standards is a common reason courts invalidate prenups.

The “Fairness Test” in Washington

Washington courts apply a two-part fairness test:

1. Substantive fairness – Were the terms fair at the time of signing?
2. Procedural fairness – Was the agreement entered knowingly and voluntarily, with full disclosure?

If a prenup fails either part, a court may refuse to enforce it. 

What Can and Cannot Be Included

Common Provisions

Prenups in Washington can address:

• Division of property and debts
• Treatment of income and future assets
• Business ownership
• Spousal support (alimony), within limits
• Estate planning considerations

Prohibited or Limited Provisions

Prenups cannot:

• Predetermine child custody or child support
• Include illegal terms or terms violating public policy
• Limit courts’ authority to ensure fairness 

When a Prenup May Be Invalidated

Even if signed, a prenup may be challenged in court. Common reasons include:

• Incomplete or misleading financial disclosure
• One-sided or unconscionable terms
• Pressure or coercion before signing
• Signing too close to the wedding date
• Lack of understanding of the agreement

Courts evaluate the “totality of circumstances” when deciding enforceability. 

Who Should Consider a Prenup?

Prenuptial agreements are especially useful for individuals who:

• Have significant assets or debts
• Own a business
• Have children from a previous relationship
• Expect a large inheritance
• Want to clearly define financial expectations

Prenups are not only for the wealthy—they can benefit any couple seeking financial transparency.

Advantages and Disadvantages

Advantages

• Clarifies financial rights and expectations
• Protects separate property
• Reduces conflict in case of divorce
• Can save time and legal costs later

Disadvantages

• Can feel uncomfortable, unromantic, lack of trust
• May be challenged in court
• Requires upfront legal costs

Final Thoughts

Prenuptial agreements are powerful legal tools—but only when carefully drafted. The state’s emphasis on fairness, full disclosure, and voluntary consent means that a “quick” or one-sided prenup is unlikely to hold up in court.  It is strongly advised each party have independent legal counsel to draft, review, discuss the agreement and it implications.

For couples considering a prenup, the most effective approach is early planning, open communication, and guidance from experienced legal counsel. When done correctly, a prenuptial agreement is less about anticipating divorce and more about building a transparent and financially secure partnership from the start—nothing uncomfortable, unromantic, lacking trust—just peace of mind and known expectations for both parties.

We are here to help:  S. Scott Burkhalter, scott@ssburklaw.com, 4253033110.