Rights Which May Be Altered By A Pre-Nuptial Agreement
A Prenuptial Agreement may alter property rights which you would otherwise have with respect to the earnings and property of your spouse if your marriage were dissolved or you were to survive your spouse without having executed the Prenuptial Agreement.
Some of the more important property rights of spouses under the laws of the State of Washington, some or all of which may have been altered by the Prenuptial Agreement, are as follows:
1. Separate Property. Property owned by either spouse at the time of marriage or acquired by either spouse after the marriage by gift, devise, or inheritance, together with the rents, issues and profits thereof, is separate property and shall not be subject to the contracts and debts of the other spouse. Spouse may manage, lease, sell, convey, encumber or devise by Will his or her separate property without the other spouse joining in such management, alienation or encumbrance, as fully as to the same effect as though he or she were unmarried. RCW 26.1 6.010, 26.1 6.020.
2. Community Property and Quasi-Community Property. All property acquired after marriage by either spouse (except separate property, as defined in section 1 above) is either community property, if acquired while the spouses are domiciled in Washington, or quasi-community property, as discussed in Section (b) below.
a. Community Property. Each spouse immediately owns an undivided one- half interest in all community property. Either spouse, acting alone, may manage and control community property, with the following exceptions:
i. Neither spouse shall devise or bequeath by Will more than one-half of the community property, and neither spouse shall give away community property without the express or implied consent of the other spouse.
ii. Neither spouse shall purchase, contract to purchase, sell, convey or encumber community real property without the other spouse joining in the execution of the contract to purchase, deed or other instrument affecting the community real property.
iii. Each spouse is limited in his or her ability to create a security interest in community household goods, and neither spouse shall acquire, purchase, sell, convey or encumber the assets, including real estate, or the goodwill of a business where both spouses participate in its management without the consent of the other spouse. RCW 26.16.030.
b. Quasi-Community Property. In general, quasi-community property rights arise when a married couple resides in a non-community property jurisdiction during most of the marriage and then moves to Washington, and the first spouse dies owning property that is legally separate property under Washington law but would have been community property if the spouses had resided in Washington when such property was acquired.
Quasi-community property is defined as all personal property wherever situated and all real property wherever situated, including leasehold interests (so long as the laws of the situs of the non-Washington real property provide that the laws of the decedent spouses domicile control the rights of the surviving spouse in such real property), which was acquired by the deceased spouse while domiciled elsewhere and which would have been the community property of the deceased spouse and the surviving spouse if the deceased spouse had been domiciled in the State of Washington at the time the property was acquired. RCW 26.16 .220. Upon the death of a spouse domiciled in the State of Washington, one-half of the quasi-community property shall belong to the surviving spouse and the other one-half shall be subject to disposition by the deceased spouse or shall to send in the manner provided for community property (i.e., shall pass to the surviving spouse under RCW 11.04.015(1)(a)). RCW 26.16 .230. The surviving spouse shall have the right to recover transfers of quasi-committee property made by the deceased spouse within three years prior to his or her death if the deceased spouse retained rights or power over such transfer property during his or her lifetime. RCW 26.16 .240.
3. Property Rights and Support upon Separation or Dissolution. In the event of a legal separation or dissolution of marriage, a Washington court has jurisdiction over all of the property of the parties and can enter an order apportioning both community and separate property and liabilities. The court shall make a just and equitable distribution of such property and liabilities, considering all relevant factors including, but not limited to, the nature and extent of each party separate property, the duration of the marriage, and the economic circumstances of each spouse, including the desirability of awarding the family home to the spouse having primary residential care of any children. RCW 26.09.080. The court can also order spousal support or maintenance and can require either party to pay a reasonable amount to the other party for the cost, including reasonable attorney fees, of maintaining or defending a dissolution proceeding. RCW 26.09.090, 26.09.140.
4. Community Property Rights upon Death . Upon the death of either spouse, the decedent can dispose of his or her one-half of all community property, and the other one- half of the committee property belongs to the surviving spouse. RCW 11.02.070.
5. Intestate Succession. If either spouse dies intestate (without a Will), the surviving spouse is entitled to all of the decedents share of the net community estate. If the decedent is survived by any children, the surviving spouse is also entitled to one- half of the decedents net separate estate. If the decedent has no surviving children but is survived by either of his or her parents, or by any descendent of his or her parents, the surviving spouse is entitled to three- quarters of the decedents net separate estate. If the decedent is not survive any children, parents, or decedents of parents, the surviving spouse is entitled to all of the decedents net separate estate. RCW 11.04.015.
6. Homestead and Family Allowance. Upon the death of either spouse, the surviving spouse may petition the court for a family allowance award of $125,000 from the decedents community or separate property. RCW 11.54.010. The amount of the award may be increased or decreased at the discretion of the court under specific circumstances. RCW 11.54.020. The award has priority over all other claims made in the estate, and the property awarded or cash paid is immune from all debts, including judgments and judgment liens, of the decedent and of the surviving spouse existing at the time of death, except for encumbrances on property awarded and certain medical expenses recoverable by statute. RCW 11.5 4.070, .060.
7. Revocation of Pre-Marriage Will by Subsequent Marriage . If a Will fails to name or provide for a spouse of the decedent whom the decedent marries after the Will’s execution and who survived the decedent, the surviving spouse shall receive and intestate share of the decedents estate, unless it appears either from the Will or from other clear and convincing evidence that the standard was intentional. RCW 11.12 .095.
8. Right to Administer Community Property. Regardless of whom the decedent’s Will names his personal representative, the surviving spouse has a right to administer the community property, if he or she applies for appointment within 40 days after the death of the deceased spouse. If anyone else petitions for appointment as personal representative of the deceased spouse’s estate within 40 days after the deceased spouse’s death, the surviving spouse must be given notice of such petition. RCW 11.28.030.
9. Other Property Rights upon Death. On the death of either spouse, the survivor is entitled to such other and further rights in and to the property and the estate of the decedent as provided by the statutes of the State of Washington that are not referred to on this page.
Attorney’s Fees and Costs
Our attorney’s fees are based on an hourly rate along with an estimate of the amount of time we believe it will take to draft your prenuptial, separate property, or other property agreement. Our current hourly fees are listed on our website in “Services” under “Fees.”
Note to Do-It-Yourselfers:
If you choose to do your own prenuptial, separate property, or other property agreement, we always recommend you have our office review your paperwork before you file it with the court. We do charge a minimal fee for this review or any other services you request.
Our office keeps itemized billing records that are created at the same time as specific services provided for your case. This itemized billing statement is provided to you at the end of each month. You should review this billing statement carefully as it is not only a record of our time and charges for your case but also a record of our services provided.
Our office also prepares a written attorney fee agreement for each case. The agreement is signed by you and Gregory L. Davies. The original is kept in our client file and a copy is provided to you.
Thank you for your interest in our office and our legal services. If you have any questions concerning your prenuptial, separate property, or other property agreement (or any other legal matter), whether you hire our office to work with you or you are processing your prenuptial, separate property, or other property agreement yourself, please contact our office to set up an appointment to meet with Gregory L. Davies.
To find our find out more about how our law firm can help you with your legal needs, contact Gregory L. Davies, Attorney at Law, in Everett, Washington. Call (425) 259-2755 or email us.