A Prenuptial Agreement (sometimes called a Property Status Agreement) alters property rights that 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. Each 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 and to the same effect as though he or she were unmarried. RCW 26.16.010, 26.16.020.
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 Subsection (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:
(1) 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.
(2) 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.
(3) 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 deceased spouse’s 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 descend 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. A surviving spouse shall have the right to recover transfers of quasi-community 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 transferred 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, the 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 the community property, the nature and extent of each party’s 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 custody 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 costs, including reasonable attorney’s 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 community 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 decedent’s 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 decedent’s net separate estate. If the decedent has no surviving children but is survived by either of his or her parents, or by any descendant of his or her parents, the surviving spouse is entitled to three-fourths of the decedent’s net separate estate. If the decedent is not survived by any children, parents, or descendants of parents, the surviving spouse is entitled to all of the decedent’s net separate estate. RCW 11.04.015.
6. Family Support. Upon the death of either spouse, the surviving spouse is entitled to an award of up to $125,000. If there is no surviving spouse, the award can be made to the decedent’s minor children. If the decedent is survived by children who are not also children of the surviving spouse, the award can be divided between those children and the surviving spouse. The award can be satisfied from the community or separate property of the decedent, and can be made even if no probate proceedings have been commenced. The amount of the basic award can be increased if the claimant’s present and reasonably anticipated future needs for basic maintenance and support during the pendency of a probate will not be provided for, and if increasing the award will not be inconsistent with the decedent’s intent. The amount of the basic award may be decreased if the claimant is entitled to receive other probate or nonprobate property, including insurance, or if the decedent is survived by minor children or children who are not the children of the surviving spouse and the award would decrease the amount distributable to them. Any amount awarded to the surviving spouse or children is immune from all debts of the decedent and the surviving spouse at the time of death. The court may also exempt other assets from the claims of creditors upon petition. RCW 11.54.010 et seq.
7. Revocation of Pre-Marriage Will by Subsequent Marriage. If, after making a Will, a person marries and the surviving spouse is not mentioned in the Will, the omitted spouse shall be entitled to receive an amount equal to an intestate share of the decedent’s estate (as discussed in Section 5 above), unless the court determines a smaller share, including no share at all, is more in keeping with the decedent’s intent. RCW 11.12.095.
8. Right to Administer Community Property. Regardless of whom the decedent’s Will names as personal representative, the surviving spouse has the right to administer the community property, if he or she applies for appointment within forty days after the death of the deceased spouse. If anyone else petitions for appointment as personal representative of the deceased spouse’s estate within forty 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 in this memorandum.
10. Committed Intimate Relationship Doctrine. A non-marital relationship, otherwise commonly referred to as “committed intimate relationship” or “cohabitational,” is a stable, marital-like relationship where both parties cohabit with knowledge that a lawful marriage between the two does not exist. Connell v. Francisco, 127 Wn.2d 339, 346, 898 P.2d 831 (1995); In re Marriage of Lindsey, 101 Wn. 2d 299, 304, 678 P.2d 328 (1984). The existence of a committed intimate relationship depends on the facts of each case. Lindsey, 101 Wn. 2d at 490. Relevant factors demonstrating a committed intimate relationship include, but are not limited to, continuous cohabitation, duration of the relationship, purposes of the relationship, pooling of resources and services for joint projects, and the intent of the parties. Lindsey, 101 Wn. 2d at 304-305. Although duration of the relationship is an important factor, a meretricious relationship has been found after only two years when significant and substantial factors are present. Lindsey, 101 Wn. 2d at 304-305. If a committed intimate relationship is found to exist, each cohabitant has a property claim or ownership interest in the property of the other that was improved or purchased during the relationship.