Washington
Washington Prenuptial Agreement Laws: When Courts Enforce Them (2026)
Independently fact-checked against primary sources (last audited October 10, 2026). · 7 primary sources cited on this page. How we verify our legal content
Washington courts decide whether a prenuptial agreement is enforceable under case law. In In re Marriage of Bernard, 165 Wn.2d 895 (2009), the Washington Supreme Court explained that "To determine the enforceability of a prenuptial agreement, this court undertakes a two-prong analysis": first substantive fairness, then, if needed, procedural fairness. The family-law chapters of the Revised Code of Washington cited on this page (chapters 26.04, 26.09 and 26.16 RCW) contain no section on premarital agreements.
Information last verified on 2026-10-09. This article has not been reviewed by a licensed lawyer.
Jurisdiction scope: This article covers how Washington courts evaluate prenuptial agreements under In re Marriage of Bernard (2009) and the cases it applies, and the related Washington community property statutes (RCW 26.16.010, 26.16.030, 26.16.050, 26.16.120 and 26.09.080). It does not cover how courts have applied the statute of frauds (RCW 19.36.010) to particular agreements, time limits for challenging an agreement, limits on waiving spousal maintenance, whether an agreement can affect child support or custody, other case law on postnuptial agreements, registered domestic partnership agreements, or other states' law. For property division without an agreement, see Washington divorce laws.
Is a prenup enforceable in Washington?
A prenuptial agreement can be enforced in Washington if it passes the courts' fairness test. This page does not identify a dedicated Washington premarital-agreement statute (the writing rule is covered under Formalities below); the section lists of chapters 26.04, 26.09 and 26.16 RCW include no premarital-agreement section. Enforceability instead turns on Washington Supreme Court decisions.
In Bernard, the court stated: "To determine the enforceability of a prenuptial agreement, this court undertakes a two-prong analysis." The court applied the test from In re Marriage of Matson, 107 Wn.2d 479 (1986).
The two-prong test from Bernard
| Step | What the court asks | Source |
|---|---|---|
| Burden of proof | The spouse seeking to enforce the agreement must show it is enforceable | Bernard, citing Friedlander v. Friedlander, 80 Wn.2d 293, 300 |
| Prong 1: substantive fairness | Whether the agreement makes reasonable provision for the spouse not seeking to enforce it; if it does, it is enforceable and the analysis ends | Bernard |
| Prong 2: procedural fairness (only if prong 1 fails) | Full disclosure of the property, and whether the agreement was freely entered into on independent advice from counsel with full knowledge of rights | Bernard, citing Matson, 107 Wn.2d 479, 483 (1986) |
Prong 1: is the agreement substantively fair?
The court first "determines whether the agreement is substantively fair, specifically whether it makes reasonable provision for the spouse not seeking to enforce it" (Bernard). If the agreement makes reasonable provision for that spouse, it is enforceable and the court does not reach the second prong.
Bernard judges validity by "the circumstances surrounding the execution of the agreement" (quoting In re Marriage of Zier) and declined to measure substantive fairness at the time of enforcement instead.
Prong 2: was the process fair?
If the agreement is not substantively fair, the court looks at how it was made. Bernard, quoting Matson, asks "(1) whether the spouses made a full disclosure of the amount, character, and value of the property involved and (2) whether the agreement was freely entered into on independent advice from counsel with full knowledge by both spouses of their rights."
Disclosure and independent counsel
Independent advice from counsel is part of the procedural-fairness question when an agreement is substantively unfair. So is full disclosure of "the amount, character, and value of the property involved" (Bernard, quoting Matson).
Timing can matter. In Bernard, the wife received a draft 18 days before the wedding, and her independent lawyer received a substantially different working draft three days before it. The court found there was "not enough time for Gloria or her attorney to adequately review the prenuptial agreement," and a later amendment limited to a few points did not cure that. A lawyer licensed in Washington can review an agreement.
In re Marriage of Bernard (2009)
In In re Marriage of Bernard, 165 Wn.2d 895, 204 P.3d 907 (2009), the Washington Supreme Court applied the Matson two-prong test and held a prenuptial agreement unenforceable because it was both substantively and procedurally unfair.
The wife had a net worth of about $8,000, compared with the husband's roughly $25 million. She received a draft 18 days before the wedding, and her lawyer received a substantially different working draft three days before it.
Formalities: writing, signatures and notarization
Washington's statute of frauds, RCW 19.36.010(3), provides that "every agreement, promise, or undertaking made upon consideration of marriage, except mutual promises to marry" is void unless it, or some note or memorandum of it, is in writing and signed by the party to be charged. This page does not cover how courts have applied that rule to particular prenuptial agreements.
A different kind of spousal agreement has statutory formalities. A community property agreement under RCW 26.16.120, covering the status or disposition of community property and taking effect on a spouse's death, must be made by an instrument in writing "witnessed, acknowledged and certified in the same manner as deeds to real estate are required to be" (RCW 26.16.120).
What a Washington prenup cannot do
This page does not cover whether a Washington prenuptial agreement can limit child support, custody or spousal maintenance.
One nearby rule applies to separation contracts, not prenups: under RCW 26.09.070(3), parenting-plan terms in a separation contract do not bind the court, and child support terms are reviewed for compliance with RCW 26.19.020. Ask a Washington family lawyer whether similar limits apply to a premarital agreement.
Changing or revoking a prenup
This page does not identify a Washington statute on amending or revoking a prenuptial agreement. For community property agreements under RCW 26.16.120, the statute allows the agreement to be altered or amended at any time in the same manner in which it was made.
Postnuptial agreements in Washington
The statutes cited on this page address two kinds of agreements between spouses: community property agreements about the status or disposition of property that take effect on death (RCW 26.16.120), and conveyances of community real property between spouses (RCW 26.16.050). In Bernard, which involved a prenuptial agreement amended after the wedding, the court said that fact did not alter its analysis, citing In re Marriage of Hadley, 88 Wn.2d 649 (1977), which analyzed three postnuptial agreements under the same two-prong approach.
Community property without an agreement
Washington is a community property state. Under RCW 26.16.030, property "acquired after marriage or after registration of a state registered domestic partnership by either domestic partner or either husband or wife or both, is community property," unless it is separate property. Separate property under RCW 26.16.010 includes property owned before marriage and property acquired by gift, bequest, devise, descent or inheritance.
On divorce, the court makes a "just and equitable" division of both community and separate property (RCW 26.09.080). See Washington divorce laws for property division and Washington alimony laws for maintenance.
Disclaimer: This article provides general legal information about prenuptial agreements under Washington case law and the Revised Code of Washington, verified on 2026-10-09. It is not legal advice and is not a template for drafting an agreement. For advice about a specific agreement, consult a lawyer licensed in Washington.
Related
- Prenuptial agreement laws in every state
- Washington divorce laws
- Washington alimony laws
- Washington common-law marriage
Last updated: 2026-10-09.
Frequently Asked Questions
Are prenups enforceable in Washington State?
They can be. Under In re Marriage of Bernard (2009), a court enforces an agreement that makes reasonable provision for the spouse not seeking to enforce it, and otherwise looks at disclosure and whether it was freely entered into on independent advice of counsel.
Has Washington adopted a premarital agreement statute?
This page does not identify one. The family-law chapters cited here (chapters 26.04, 26.09 and 26.16 RCW) contain no premarital-agreement section. The statute of frauds (RCW 19.36.010(3)) requires agreements made in consideration of marriage to be in writing and signed, and enforceability is otherwise decided under case law such as Bernard and Matson.
Do both parties need a lawyer for a prenup in Washington?
Independent advice from counsel is one of the procedural-fairness factors a court weighs if an agreement is not substantively fair (Bernard, quoting Matson). In Bernard, the wife had a lawyer, but the court found there was not enough time for her or her lawyer to adequately review the agreement before the wedding and, because the agreement was also substantively unfair, held it unenforceable.
Who has to prove a Washington prenup is valid?
The spouse seeking to enforce the agreement bears the burden of proof, according to Bernard, citing Friedlander v. Friedlander, 80 Wn.2d 293.
What happens to property in a Washington divorce without a prenup?
Property acquired during marriage is generally community property (RCW 26.16.030), and the court makes a just and equitable division of community and separate property (RCW 26.09.080).
Updates
Independently fact-checked against the cited primary sources
The Law Behind This Article
This article rests on the statutory provisions below, held in our own legal record and retrieved from the official source. Tap a section to read the operative text.
Revised Code of Washington
§ 26.16.120Agreements as to status.In force
Nothing contained in any of the provisions of *this chapter or in any law of this state, shall prevent both spouses or both domestic partners from jointly entering into any agreement concerning the status or disposition of the whole or any portion of the community property, then owned by them or afterwards to be acquired, to take effect upon the death of either. But such agreement may be made at any time by both spouses or both domestic partners by the execution of an instrument in writing under their hands and seals, and to be witnessed, acknowledged and certified in the same manner as deeds to real estate are required to be, under the laws of the state, and the same may at any time thereafter be altered or amended in the same manner. Such agreement shall not derogate from the right of creditors; nor be construed to curtail the powers of the superior court to set aside or cancel such agreement for fraud or under some other recognized head of equity jurisdiction, at the suit of either party; nor prevent the application of laws governing the community property and inheritance rights of slayers or abusers under chapter 11.84 RCW.
Official text (excerpt) · last checked 2026-07-29 · Read the full text in our law library · Verify at app.leg.wa.gov
§ 26.16.030Community property defined—Management and control.In forcecited in 2 of our articles
Property not acquired or owned, as prescribed in RCW 26.16.010 and 26.16.020, acquired after marriage or after registration of a state registered domestic partnership by either domestic partner or either husband or wife or both, is community property. Either spouse or either domestic partner, acting alone, may manage and control community property, with a like power of disposition as the acting spouse or domestic partner has over his or her separate property, except: (1) Neither person shall devise or bequeath by will more than one-half of the community property. (2) Neither person shall give community property without the express or implied consent of the other. (3) Neither person shall sell, convey, or encumber the community real property without the other spouse or other domestic partner joining in the execution of the deed or other instrument by which the real estate is sold, conveyed, or encumbered, and such deed or other instrument must be acknowledged by both spouses or both domestic partners.
Official text (excerpt) · last checked 2026-07-29 · Read the full text in our law library · Verify at app.leg.wa.gov
Also relied on in: Washington Quitclaim Deed: Requirements, Recording and REET
§ 26.09.080Disposition of property and liabilities—Factors.In forcecited in 4 of our articles
In a proceeding for dissolution of the marriage or domestic partnership, legal separation, declaration of invalidity, or in a proceeding for disposition of property following dissolution of the marriage or the domestic partnership by a court which lacked personal jurisdiction over the absent spouse or absent domestic partner or lacked jurisdiction to dispose of the property, the court shall, without regard to misconduct, make such disposition of the property and the liabilities of the parties, either community or separate, as shall appear just and equitable after considering all relevant factors including, but not limited to: (1) The nature and extent of the community property; (2) The nature and extent of the separate property; (3) The duration of the marriage or domestic partnership; and (4) The economic circumstances of each spouse or domestic partner at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to a spouse or domestic partner with whom the children reside the majority of the time.
Official text (excerpt) · last checked 2026-07-29 · Read the full text in our law library · Verify at app.leg.wa.gov
Cited in 403 court opinions in our collectionLatest citing opinion in our collection: 2026
Opinions citing this section in our collection:
- In Re the Marriage of Washburn (Washington Supreme Court 1984, 101 Wash. 2d 168)“…considered in dividing property and liabilities pursuant to RCW 26.09.080, or in awarding maintenance pursuant to…”
- In Re Marriage of Muhammad (Washington Supreme Court 2005, 108 P.3d 779)“…just and equitable after considering all relevant factors." RCW 26.09.080. Such factors include "[t]he economic c…”
- In re the Marriage of Muhammad (Washington Supreme Court 2005, 153 Wash. 2d 795)“…just and equitable after considering all relevant factors.” RCW 26.09.080. Such factors include “[t]he economic c…”
Identified automatically from the court opinions citing this section — not a ranking of which case controls.
Also relied on in: Common Law Marriage in Washington State: Is It Recognized? (2026), Washington Divorce Laws (2026): Grounds, Residency, and Process, Legal Separation in Washington: How It Works and What Courts Order
§ 26.16.010Separate property of spouse.In force
Property and pecuniary rights owned by a spouse before marriage and that acquired by him or her afterwards by gift, bequest, devise, descent, or inheritance, with the rents, issues and profits thereof, shall not be subject to the debts or contracts of his or her spouse, and he or she may manage, lease, sell, convey, encumber or devise by will such property without his or her spouse joining in such management, alienation or encumbrance, as fully, and to the same extent or in the same manner as though he or she were unmarried.
Official text (excerpt) · last checked 2026-07-29 · Read the full text in our law library · Verify at app.leg.wa.gov
Search our full record of US law — 2.1 million sections, every state + federal →
Sources and References
- In re Marriage of Bernard, 165 Wn.2d 895, 204 P.3d 907 (2009) (Caselaw Access Project)(static.case.law)
- RCW 26.16.030: Community property defined (Washington State Legislature)(app.leg.wa.gov).gov
- RCW 26.16.120: Agreements as to status or disposition of community property (Washington State Legislature)(app.leg.wa.gov).gov
- RCW 26.09.070: Separation contracts (Washington State Legislature)(app.leg.wa.gov).gov
- RCW 26.16.050: Conveyances between spouses (Washington State Legislature)(app.leg.wa.gov).gov
- RCW 26.16.010: Separate property of spouse (Washington State Legislature)(app.leg.wa.gov).gov
- RCW 26.09.080: Disposition of property and liabilities (Washington State Legislature)(app.leg.wa.gov).gov
- RCW 19.36.010: Contracts, etc., void unless in writing (Washington State Legislature)(app.leg.wa.gov).gov