Christopher S. Mulvaney



MULVANEY LAW OFFICES, PLLC does not do Prenuptial Agreements Per Se.

However, I believe that executing your estate plan before you draft a Prenuptial Agreement has value because it identifies and labels all of the property owned before marriage.

There are three steps to creating an effective and enforceable prenuptial agreement.  First, creating an estate plan including separate property trusts is needed to label and segregate property and debt you each have now.  Second, is listing all of those assets and debts on the attached spreadsheet.  Third, is memorializing your agreement regarding how you wish to conduct your financial lives during marriage.  This includes recording deeds for real estate, and consent forms for naming anyone other than your spouse as primary beneficiary of retirement accounts or other accounts with beneficiary designations.  Any agreement between the two of you does not bind third parties.  Recording deeds and filing consent forms with the custodian of your retirement of other beneficiary accounts does, which is why doing so is vital for effectiveness of your agreement.  Fairness is the number one factor contributing to enforceability.

Often, once parties have done the estate planning, and spreadsheet listing all separate assets and debts, and recorded deeds and filed consent forms with asset custodians, they realize that the prenuptial agreement they had in mind, which is simply keeping everything before marriage as separate property and everything (except gifts and inheritance) as community property is not necessary because that property division is already built in to the Revised Code of Washington.

RCW 26.16.120 gives spouses the right to agree to property division.

Many other rights are contained in Title 26 Section 16.

Married people in Community Property states such as Washington have the right to hold separate property during marriage.

Holding Separate Property during marriage does not require the consent of a spouse for property owned before marriage, gifts, inheritance, and pain and suffering damages which are all presumed to be Separate Property. However, proceeding with your spouse’s knowledge and written consent is best.

Key to enforceability is not commingling Separate Property with Community Property. Doing so creates a blended asset which can be difficult, time consuming and expensive to separate. Separate Property is like a tax deduction – if you can’t prove it, then you can’t take it.

That is why understanding that married people may have five (5) distinct types of property with different rights associated with them is important.

(1) Community Property

(2) Wife’s Separate Property Acquired Before Marriage

(3) Wife’s Separate Property Acquired After Marriage (excluding non-commingled gifts, inheritance, and pain & suffering damages)

(4) Husband’s Separate Property Acquired Before Marriage

(5) Husband’s Separate Property Acquired After Marriage (excluding non-commingled gifts, inheritance, and pain & suffering damages)

The Divorce Court does not have jurisdiction over separate property acquired before marriage and non-commingled gifts, inheritance, and pain & suffering damages other than ruling what is included in those categories and what is not.

Commingling means mixing separate assets with community property. For example, a married person using a half million dollar inheritance to make a down payment on a jointly owned marital home.

Community Property and Separate Property Acquired After Marriage not-commingles and in those three categories is subject to the jurisdiction of the Divorce Court for division.

Keeping good records and clearly labeling property during marriage reduces anxiety, increases a sense of control, and has the side benefit of protecting spouses in the event of divorce and protecting children as well.

Increasing enforceability of a Prenuptial Agreement requires each Party to have their own Counsel.

I believe that having one lawyer prepare estate plans for both Parties is best. The Parties waive potential conflicts of interest and each agree that they can hire their own lawyers at any time. Since I represent both Parties, I have to be fair to both and cannot keep confidences from either Party from each other. I also can never represent one Party against the other because of conflicts of interest. This promotes harmony and communication between the Parties.

Separate Counsel is needed if a Prenuptial Agreement attempts to address either of these issues:

  1. Attempting to add to Separate Property during marriage; and
  2. Attempting to limit or eliminate Spousal Support in the event of Divorce.

Prenuptial Agreements are less enforceable the closer they are executed to the date of marriage.

Prenups should be signed at least six (6) months prior to the wedding in order to be knowing and voluntary and not subject to undue influence.

A Divorce Court can void a Prenuptial Agreement in whole or in part to the extent that it is not fair and equitable.

A Prenuptial Agreement can also be voided by the conduct of the Parties in not following their Agreement.

One way to minimize this risk is to calculate the percentage that each party has of the total of combined property. The result will be a ratio such as 70/30 meaning one party has 40% more of the total property than the other. When you do your taxes each year, pay attention to how much each partner has contributed to their separate property and how much property has appreciated. If the percentage of the lower asset value partner decreases significantly, this should be adjusted and brought back up to 70/30 in order to not risk adjustment by a Divorce Court. Even if you never get divorced, I think the exercise has value because you are paying attention to how much the other person has in assets and adjusting to maintain fairness. This is meant to have a positive effect on the relationship, decrease anxiety, and lessen the likelihood of divorce.

I believe that each Party listing and sharing assets and debts has value. Learning to talk about financial issues effectively during marriage has value and reduces disputes. If you start doing so when you each have your own lawyers, I believe you are more likely to each have your own lawyers in divorce. By learning to communicate if you do end up divorced, I believe it is more likely to be an uncontested divorce by mail which is permitted in Washington State.

I believe that having accounts in your name as Trustee of your Separate Property Trust into which gifts and inheritance can be deposited has value. It is a hedge against divorce and a hedge against disinheritance of children if you predecease them and your spouse remarries someone who likes their own kids better than yours. This is what happened to Cinderella. If Cinderella’s father would have had a Separate Property Trust as a Married Person, then the story would have been very boring because Cinderella would have had the irrevocable gift from her father that the step-mother couldn’t touch.

I had a case in which a father linked his bank account to his daughter’s Married Separate Property Trust Account so that he could give his daughter as much as he wanted whenever he wanted. This had the effect of empowering his daughter because she had her own money and could leave if she wanted to do so. Her husband had to be nice to her and treat her well, which is exactly what the father intended to accomplish.

I believe writing down how you are going to care for your Spouse, Children, Parents, Siblings, Charities, Churches and others has value. Doing so reduces anxiety and reduces disputes. Having some mortality awareness tends to make people behave in kinder ways and to have more gratitude.

I believe naming your Healthcare Agents and stating whether you want to be an Organ Donor has value. In the Terri Schiavo case, her parents and her husband litigated for 15 years (1990 to 2005) all the way to the Supreme Court before she died because she did not have a Medical Power of Attorney and Living Will.

I believe that stating whether you want your Healthcare Agent to “pull the plug” and whether you want food and water after that is done has value. Being on a ventilator is more likely because of the global pandemic. These are not the type of issues you want your family to fight about.

I believe that having appointing Mental/Behavioral Health Agent (including addiction issues) has value. Knowing how to both grant and restrict access to your sensitive Healthcare information can protect you from unauthorized access or use. Having some awareness of people’s issues with mental illness or addiction makes us all better and more compassionate human beings.

All of these things are included in Estate Planning. None are included in Prenuptial Agreements.

That is why MULVANEY LAW OFFICES, PLLC does not do Prenuptial Agreements per se, but can prepare a prenuptial agreement integrating estate planning that does not include adding separate property after marriage beyond contribution to both parties in their percentage of total household income and does not attempt to waive spousal support rights.